A   TREATISE 


ON   THE 


LAW  OF  THE  DOMESTIC  RELATIONS 


EMBRACING 


HUSBAND  AND  WIFE,  PARENT  AND    CHILD,  GUARDIAN 

AND  WARD,  INFANCY,  AND  MASTER 

AND   SERVANT. 


BY 

JAMES     SCHOULER, 

AUTHOR  OF  "a  TREATISE  ON  THE  LAW  OF  PERSONAL  PROPERTY." 


SECOND   EDITION. 


BOSTON: 
LITTLE,   BROWN,  AND    COMPANY. 

1874. 


T 

1874 


Entered  according  to  Act  of  Congress  in  the  year  1870,  by 

JAMES   SCHOULER, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


Entered  according  to  Act  of  Congress  in  the  year  1874,  by 

JAMES   SCHOULER, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.G. 


CAMBRIDGE: 
PRESS  OF  JOHN   WILSON  AND   SON. 


TO     THE 

HON.  ISAAC  F.  REDFIELD,  LL.D., 

WHOSE     LABORS     HAVE     ILLUSTRATED     THE     JURISPRUDENCE     OF     TWO    COUNTRIES 

AND    WHOSE   KINDLY   SYMPATHIES   ENDEAR  HIM   TO  THE   YOUNG,    EVEN 

MORE  THAN   HIS   UNWEARIED   PATIENCE   AND   INDUSTRY 

COMMAND   THEIR   RESPECT, 

THIS     WORK     IS     GRATEFULLY    DEDICATED 

By  JAMES   SCHOULER. 


PREFACE    TO    THE    SECOND    EDITION. 


In  preparing  a  second  edition  for  the  press,  the  author  has 
personally  revised  every  page  of  his  work,  making  such 
changes  and  additions  as  appeared  suitable  in  the  light  of 
the  latest  decisions.  Some  minor  improvements  in  the  ar- 
rangement of  his  materials  have  also  been  introduced ;  but 
in  the  main'  he  has  left  his  original  paging  and  plan  of 
treatment  undisturbed. 

The  reader  will  better  appreciate  the  value  of  the  labors 
bestowed  by  the  author  upon  the  present  edition,  when  it  is 
added  that  the  latest  cases,  as  cited  herein,  have  been  assimi- 
lated with  the  text  and  foot-notes,  to  the  number  of  about  one 
thousand,  and  that  —  notwithstanding  a  slight  enlargement 
in  the  size  of  tlie  printer's  page  —  the  body  of  the  original 
work  proves  to  have  gained  nearly  fifty  pages. 

J.  S. 

March,  1874. 


PREFACE   TO   THE   FIRST  EDITION. 


The  purpose  of  the  writer,  in  the  present  treatise,  is  to  fur- 
nish a  clear,  accurate,  and  comprehehisive  analysis  of  the  law 
of  the  domestic  relations,  as  administered  in  England  and 
the  United  States  at  the  present  day. 

To  accomplish  this  purpose,  and  at  the  same  time  not  to 
transcend  the  limits  of  a  single  volume,  was  not  easy.  It 
became  necessary  to  treat  of  principles  rather  than  details, 
and  to  avoid  matters  of  local  practice  altogether.  A  few 
topics,  such  as  curtesy  and  dower,  which  are  fully  discussed 
in  other  treatises,  have  been  for  the  same  reason  touched 
upon'  lightly,  and  the  Avork,  on  the  whole,  made  elementary 
in  its  method  of  treatment,  though  at  the  same  time  practical. 
The  lawyer  who  misses  elaborate  head-notes  and  subdivisions 
will  yet  find  assistance  in  a  full  index  and  table  of  contents  : 
and  what  has  been  lost  in  this  respect  is  gained  in  subject- 
matter.  Especial  pains  have  been  taken  to  present  in  this 
work  such  topics,  pertaining  to  the  general  subject,  as  were 
not  eas  ly  accessible  elsewhere. 

The  writer  has  freely  consulted  the  valuable  law  libraries 
of  the  Suffolk  Bar,  at  Boston,  and  of  Congress,  at  Washing- 
ton,—  the  latter  being  the  most  extensive  in  this  country. 
Among  works  which  have  afforded  him  the  greatest  assist- 
ance, are  Macqueen  on  Husband  and  Wife,  Peachey  on 
Marriage  Settlements,  Macpherson  on  Infancy,  and  Smith 
on  Master  and  Servant,  —  treatises  of  acknowledged  merit 
in  England,  though  little  known  in  the  United  States.    Other 


VIU  PREFACE   TO   THE   FIRST   EDITION. 

books,  more  familiar,  which  need  not  be  enumerated  at 
length,  furnished  valuable  material  in  certain  parts  of  this 
work,  as  the  foot-notes  sufficiently  indicate.  The  writer 
deems  it  just  to  himself  to  add,  that  the  time-honored 
treatise  of  Judge  Reeve  has  been  found  of  little  service, — 
tlie  radical  changes  of  the  last  fifty  years  rendering  new 
labor,  new  materials,  and  a  new  plan  of  treatment  absolutely 
essential  to  meet  the  growing  wants  of  the  age. 

If,  on  the  whole,  the  present  work  is  found  to  answer  its 
purpose,  in  the  judgment  of  liis  professional  brethren,  the 
writer  will  cheerfuU}^  acknowledge  such  errors  and  blemishes 
as  the  judicious  critic  may  kindly  point  out. 

"jAMES  SCHOULER. 

Washixgton,  D.C,  April  80,  1870. 


CONTENTS. 


[All  references  in  the  present  work  are  made  to  the  pages  of  the  original  edition,  which 
are  designated  by  a  star.] 


PART    I. 


V^TRODUCTORY    CHAPTER. 

Domestic  relations  defined  and  classified 3 

Plan  of  treatment  by  former  writers 3 

Proper  classification  of  the  subject 5 

General  characteristics  of  the  law  of  family 8 

Law  of  husband  and  wife  now  in  a  transition  state 10 

Common-law  and  civil-law  schemes  contrasted 10,  12 

Community  system 14 

]\larried  women's  acts  in  America 16 

Law  of  parent  and  child,  and  remaining  topics 21 

General  purpose  of  the  present  treatise 21 


PART    II. 
HUSBAND   AND   WIFE. 

CHAPTER    I. 

MARRIAGK. 

Marriage  in  general 22 

Definition  of  marriage 22 

Marriage  not  a  contract  in  the  ordinary  sense  of  the  term     .     .     .22 

Void  and  voidable  marriages 24 

The  essentials  of  marriage 25 

Consanguinity  and  affinity 26 

The  essential  of  social  condition 28 


X  CONTENTS. 

Mental  capacity 29 

Physical  capacity 31 

Infancy  as  an  impediment 32 

Bigamy  and  polygamy,  and  impediments  following  divorce   ...  33 

Force,  fraud,  and  error 35 

Formal  and  informal  marriage  celebration 39 

Consent  of  parents  and  guardians 46 

Legislative  marriages 47 

Conflict  of  laws  concerning  marriage 47 


CHAPTER    n. 

THE   GENERAL   DISABILITIES    OF    COVERTURE. 

Order  of  treatment  in  this  and  succeeding  chapters 51 

Common-law  doctrine  of  coverture  as  to  person 51 

Husband  as  dignior  persona —  ^ 51 

Duty  of  husband  and  wife  to  live  together;  matrimonial  domicile; 

contracts  in  restraint  of  marital  rights 53 

Remedies  for  breach  of  marital  duty 56 

Husband  may  sue  for  enticement 57 

His  right  to  correct  and  restrain  his  wife 59 

Assault  and  battery 61 

Custody  of  children 61 

Coverture  as  it  affects  property  rights 61 

Husband's  rights  and  liabilities  with  respect  to  wife's  property  .     .  61 

Mutual  rights  and  disabilities 63 

Mutual  disability  to  sue  and  contract 63 

Disqualification  of  husband  and  wile  as  witnesses 63 

Property  rights  as  alfected  by  conflict  of  laws 67 


CHAPTER   III. 

THE  EFFECT  OF  COVERTURE  UPOX  THE  WIFE'S  DEBTS  AND  CONTRACTS. 

Husband  must  pay  his  wife's  antenuptial  debts 69 

Modifications  of  the  rule  ;  how  lar  carried 72 

Wife  cannot  bind  herself  by  contract 74 

But  she  may  bind  her  husband  as  agent 76 

Doctrine  of  the  wife's  necessaries 76 

Rule  of  the  husband's  liability  for  necessaries 80 

Where  husband  and  wife  live  together 80 

Where  they  live  apart 88 

Cases  of  voluntary  separation 94 

Summary  of  the  doctrine  of  necessaries 97 

Wife,  when  an  agent,  may  bind  husband  on  general  contracts      ...  98 


CONTENTS.  XI 


CHAPTER    IV. 

THE   EFFECT  OF   COVERTURE   UPON    THE   WIFE's   INJURIES   AND   FRAUDS. 

Frauds  and  injuries  committed  by  the  wife 101 

Husband  not  criminally  answerable  for  his   wife's  behavior,  but 

coercion  sometimes  presumed  in  the  wife's  favor  • 101 

Husband  responsible  for  his  wife's  private  wrongs 102 

Limitations  of  the  rule  ;  presumption  of  coercion 103 

Rule  where  the  wife's  contract  is  the  basis  of  a  fraud 104 

Husband  of  an  executrix  liable  for  her  wrongful  acts      ....  105 

Cases  of  injunction 106 

Frauds  and  injuries  committed  upon  the  wife 106 

Legal  procedure  in  such  cases 107 

Husband's  special  suit  for  damages,  ^er  quod;  seduction,  &c.      .  108 

Instantaneous  death 110 

Suits  where  both  husband  and  wife  are  injured 110 


CHAPTER    V. 

THE   EFFECT   OF   COVERTURE   UPON   THE   WIFE'S   PERSONAL  PROPERTY. 

The  wife's  personal  property  goes  to  her  husband Ill 

Choses  in iJossession  vest  absolutely,  chases  in  action  potentially    .  Ill 

Rule  as  to  wife's  cAoses  m  possession,  or  corporeal  chattels    .     .     .     .  112 

Rule  as  to  wife's  c/ioses  m  action,  or  incorporeal  chattels 114 

What  are  choses  in  action i.     ...  115 

Reduction  into  possession  necessary 116 

What  acts  amount  to  reduction  ;  stocks,  bills  and  notes,  &c.  .     .  116 

Reduction  of  legacies  and  distributive  shares 121 

Reduction  by  assignment  of  the  chose 123 

Reduction  by  suit  and  arbitration 126 

Summary  of  the  rule  of  reduction 128 

The  wife's  equity  to  a  settlement 128 

Property  embraced  within  the  rule  ;  proportion  allowed      .     .     .  131 

How  the  wife's  equity  may  be  barred 133 

Property  held  by  wife  in  representative  capacity  does   not  vest   in 

husband 135 

Effect  of  coverture  upon  rights  of  executrix  and  administratrix     .  135 

Case  of  female  guardian  or  trustee 136 

CHAPTER    Yl. 

THE   EFFECT   OF   COVERTURE    UPON  THE   WIFE'S   CHATTELS   REAL   AND 
REAL   ESTATE. 

Rule  as  to  chattels  real ;  leases,  &c 137 

Right  of  survivorship  as  between  husband  and  wife 137 


Xll  CONTENTS. 

Where  wife  is  executrix  or  administratrix 138 

Husband  may  alienate  chattels  real 139 

Otlier  acts  which  defeat  survivorship 140 

Rule  as  to  wife's  real  estate 142 

Usufruct  in  husband,  ownership  in  wife 143 

Husband's  lile-interest,  how  lost 144 

His  power  to  lease  and  mortgage 146 

Other  acts   affecting  wife's  ownership ;  waste,  dissent  from  pur- 
chase or  devise  to  wife,  conversion  into  personalty,  &c.   .     .     .  149 

Conveyances  by  married  women 152 

Wife's  rights  as  mortgagee,  her  covenants,  &c 155 

Effect  of  coverture  upon  wife's  life-estate 156 

Where  wife  holds  as  joint-tenant 157 


CHAPTER    VII. 

COMMOX-LAW    RIGHTS   AND    DISABIT.ITIES   OF    THE   HUSBAND   ON    HIS   WIFE's 

DECEASE. 

Husband's  right  to  administer  on  wife's  estate 158 

His  right  to  enjoy  the  property  administered  upon 160 

Rule  where  husband  dies  before  administration  completed  .     .     .  161 

Administration  as  wife's  representative 162 

Interest  in  wife's  lands  as  tenant  by  the  curtesy  ........  163 

Essentials  of  tenancy  by  the  curtesy 164 

Improvements  upon  wife's  lands,  and  other  claims 165 

Injury  to  wife's  inlieritance 165 

Husband  bound  to  bury  his  wife 166 

His  liability  tor  her  debts  and  contracts  after  her  decease       ....  167 


CHAPTER    VIII. 

COMMON-LAW    RIGHTS   AND    DISABILITIES    OF   THE  WIFE  ON   HER  HUSBAND'S 

DECEASE. 

Widow's  right  of  administration 168 

Her  distributive  share 168 

Waiver  of  provisions  under  husband's  will 170 

Widow's  allowance 171 

The  widow's  paraphernalia 171 

General  incidents  of  paraphernalia 174 

Wife's  equity  of  redemption  of  mortgage  and  exoneration     ....  176 

Controversies  between  widow  and  her  husband's  administrator  .     ,     .  179 

Whether  wife  is  bound  to  bury  lit  r  husband 179 

Rule  where  she  purchases  as  agent  after  her  husband's  death      .     .     .  179 


CONTENTS.  xiii 
CHAPTER    IX. 

THE   wife's   dower   AND   HOMESTEAD   RIGHTS. 

Dower  as  compared  with  curtesy 182 

Origin,  nature,  and  essentials  of  dower 183 

Seisin  of  the  husband,  as  an  essential 185 

Dower,  how  barred,  how  assigned 185 

Dower  in  England  and  America,  under  late  statutes 185 

The  homestead  system 186 

CHAPTER    X. 

THE   wife's   separate   ESTATE  :    ENGLISH   DOCTRINE. 

Origin  and  nature  of  separate  estate  in  chancery 187 

Appointment  of  trustee 188 

What  words  and  acts  suffice  for  separate  use 189 

Separate  use  binds  produce  of  fund 193 

It  exists  only  in  the  marriage  state 194 

Wife's  power  to  renounce  separate  use 195 

Obligations  of  husband  where  wife  has  separate  estate 196 

Clause  of  restraint  upon  anticipation 197 

Separate  estate  sometimes  recognized  at  law 199 

CHAPTER   XI. 

THE   wife's   separate   ESTATE  :     AMERICAN   DOCTRINE. 

Peculiar  development  of  the  chancery  doctrine  in  this  country    .     .     .  200 

How  far  recognized  in  the  early  Anieriean  courts 200 

English  precedents  followed,  but  not  boldly 202 

How  separate  estate  is  created,  and  its  general  incidents     .     .     .  202 

Whether  acquired  by  wife's  contract 205 

Husband's  obligations  and  rights  with  reference  to  it      ....  205 

Whether  it  exists  after  death 207 

Savings  and  income  as  separate  estate 207 

Husband's  suits  with  reference  to  separate  estate 208 

Separate  estate  upon  the  comity  of  nations 208 

Great  revolution  effected  by  statutes  since  1818 208 

The  married  women's  acts 209 

Present  statutory  policy  in  America 212 

General  features  of  the  married  women's  acts,  presumptions,  &c.  213 

Effect  of  statute  upon  equity  jurisdiction 214 


xiv  CONTENTS. 

Common-law  doctrines  of  coverture  modified  in  many  respects  by 

statute 215 

How  death  affects  rights 216 

Constitutional  questions 216 

Late  American  equity  decisions 218 

CHAPTER   XII. 

THE  wife's   dominion    OVER   HER   SEPARATE   ESTATE. 

General  principles  of  dominion  over  separate  estate 219 

English  Doctrine. 

Wife  takes  separate  property  with  power  of  disposition 219 

Her  power  to  contract  debts  with  reference  to  it 220 

Property  with  powers  of  appointment    •     •   _^ 223 

Wife's  separate  estate  affected  by  her  breach  of  trust 224 

Summary  of  the  doctrine  of  wife's  contracts 226 

Right  of  wife  to  bestow  estate  upon  husband 227 

American  Doctrine. 

Wife's  right  of  dominion,  how  far  admitted  in  equity  ;  chancery  rules  .  227 

Married  women's  acts  affect  the  rule 229 

New  doctrine  in  New  York  as  to  contracting  debts 229 

American  rules  as  to  enforcing  wife's  engagement  against  her  sep- 
arate estate 230 

Protection  of  separate  estate  against  husband's  creditors ;  how 

far  the  husband  may  control 231 

Concurrence  of  husband  in  wife's  transfer 234 

Wife's  liability  on  covenants  of  sale 235 

Survivorship  of  husband 235 

Doctrine  of  the  wife's  dominion  in  certain  States 236 

Whether  the  wife  may  bind  by  purchases  on  credit 237 

Other  rights  and  liabilities  of  wife  under  married  women's  acts     .  238 

Present  confusion  of  the  law 238 


CHAPTER  XIII. 

THE   wife's   PIX-MONEY,    SEPARATE   EARNINGS,    AND   POWER   TO   TRADE. 

Origin,  nature,  and  incidents  of  pin-money    .     .v 240 

House-keeping  allowances 242 

Wife's  earnings  in  general  belong  to  the  husband 242 

Exceptions  to  the  rule,  and  statutory  changes 243 

Wife's  power  to  trade 244 

Trading  under  the  English  law 244 


CONTENTS.  XV 

The  later  American  equity  rule 245 

Eiilarrfement  of  the  wife's  power  to  trade  by  late  American  statutes  247 

Doctrine  of  different  States 248 

Civil-law  doctrine  of  separate  trading 250 


CHAPTER   XIV. 

THE   WILLS    OF    MARRIED   WOMEN. 

Common-law  incapacity  of  married  women  ;  husband  not  incapacitated  251 

Exceptions  to  rule 251 

Wife  may  bequeath  with  husband's  consent 251 

Where  she  is  executrix 253 

Where  slie  holds  separate  estate 253 

Where  husband  is  dead  at  law 255 

As  to  property  acquired  after  husband's  death 255 

Recent  English  statutes  on  the  subject 255 

Doctrine  in  this  country  ainder  married  women's  acts    ....       256,  258 

Civil-law  rule 257 

Republication  of  wife's  will  after  coverture  ceases 259 

How  far  husband  may  control  or  take  benefits  under  wife's  will  .     .     .  259 

Mutual  wills  of  husband  and  wife 260 

The  wile's  donatio  causa  mortis 260 

Wife  may  execute  power 261 


CHAPTER  XV. 

ANTENUPTIAL   SETTLEMENTS. 

Nature  of  marriage  settlements 262 

Distinguished  from  promises  to  marry  under  statute  of  frauds  .     .  262 

Marriage  the  consideration  which  supports  antenuptial  settlements  263 

How  far  the  marriage  consideration  extends  its  support       .     .     .  264 

Settlement  good  in  pursuance  of  written  agreement 265 

The  form  of  antenuptial  settlements 266 

jMarriage  articles 267 

Enforcement  of  settlements  against  third  persons 267 

Secret  settlements  before  marriage  ;  cases  of  fraud 268 

Settlements  reformed  in  equity  according  to  articles 271 

Portions  and  covenants  to  settle 273 

Rights  under  settlement,  how  forfeited 274 

Provision  in  event  of  future  bankruptcy 274 

Marriage  settlements  in  America 275 

Effect  of  marriage  upon  a  debt  already  due  from  one  spouse  to  the 

other 275 


XVI  CONTENTS. 

CHAPTER    XVI. 

POSTNUPTIAL   SETTLEMENTS   AND    GIFTS   BETWEEN   HUSBAND    AND    WIFE. 

Postnuptial  settlements  are  in  general,  without  consideration,  as  dis- 
tinguished from  antenuptial 276 

/  Postnuptial  settlements  as  affecting  creditors 277 

'^  Statute  13  Eliz.,  as  applied  in  England 278 

Bankruptcy  of  husband 278 

American  rule  as  to  creditors'  rights 279 

Statute  27  Eliz.,  as  affecting  creditors  and  purchasers    ....  280 

How  construed  in  England  and  America 280 

Valuable  consideration  sometimes  interposed 282 

Postnuptial  settlements  and  gifts  as  between  husband  and  wife  .     .     .  283 

What  is  essential  to  support  them  in  equity 283 

Valuable  consideration  sometimes  intei^rosed 285 

Incidents  of  postnuptial  settlements  and  gifts 286 

Conveyances  of  land  between  husband  and  wife 287 

Effect  of  conveyances  to  husband  and  wife    . 288 

Insurance  effected  by  husband  for  wife's  benefit 289 

CHAPTER    XVII. 

SEPARATION   AND   DIVORCE. 

Doctrine  of  separation 290 

How  separation  deeds  came  to  be  recognized 292 

Extent  of  their  enforcement  in  chancery 293 

Doctrine  not  clearly  established  in  this  country 294 

Wife's  right,  when  abandoned,  to  contract,  sue  and  be  sued       .     .     .  295 

The  topic  of  divorce 295 

Divorce  legislation  in  general 295 

Ancient  and  modern  systems  compared 295 

Rules  in  England  and  America 298 

Wife's  domicile  for  purposes  of  divorce 299 

Effect  of  divorce  from  matrimony  upon  property  rights      .     .     .  299 

Effect  of  divorce  from  bed  and  board  upon  property  rights      .     .  301 

Mutual  rights  pending  divorce  proceedings 302 


CONTENTS.  XVll 

PART    III. 
PARENT   AND   CHILD. 


CHAPTER   I. 

OP   LEGITIMATE   CHILDREN   IN   GENERAL. 

Legitimate  and  illegitimate  children 303 

Legitimate  children  in  general 303 

Presumption  of  legitimacy  in  all  cases 304 

Legitimation  of  offspring  by  subsequent  marriage 308 

Status  of  children  born  after  divorce 311 

Legitimacy  in  putative  marriages 311 

Legitimation  by  sovereign  or  legislative  command 311 

Domicile  of  children 312 

Conflict  of  laws  as  to  domicile  and  legitimacy 313 

Parental  relation  by  adoption 314 


CHAPTER    IL 

THE   DUTIES    OF   PARENTS. 

Duty  of  protection 315 

Duty  of  education 316 

Chancery  control  of  education  ;  religious  training 317 

Duty  of  maintenance  in  general 318 

Extent  of  this  duty  at  common  law 318 

Statute  provisions 319 

IMaintenance  as  ordered  in  chancery 322 

When  allowed  from  child's  fortune 323 

Rule  of  maintenance  as  to  mother      . 325 

Whether  child  may  bind  parent  as  agent 327 

Parent's  liability  for  necessaries 328 

Child's  general  contract  sanctioned  by  parent 330 

Duty  of  providing  a  trade  or  profession 331 


CHAPTER    III. 

THE   RIGHTS   OF   PARENTS. 

Doctrine  of  parental  authority 332 

Limit  to  parent's  right  of  correction  and  discipline 333 

Indictment  for  cruelty,  exposure,  or  neglect 333 

Right  of  custody  of  children 333 

Common-law  rule  of  custody  :  English  doctrine 333 

Chancery  jurisdiction 334 

b 


XVlll  CONTENTS. 

Habeas  corpus  at  common  law 337 

Mother's  rights  extended  by  English  statute 337 

Custody,  how  awarded  in  this  country 338 

Welfare  of  the  child  the  primary  object 339 

American  statutes  as  to  custody 340 

How  far  the  child's  own  wishes  are  considered 342 

Contracts  transferring  parental  rights 342 

Right  of  parent  to  child's  labor  and  services 344 

Nature  and  extent  of  this  right 344 

How  this  right  is  relinquished 346 

Rules  as  between  parent  and  child's  employer 347 

Parental    rights    in    property  of   children    strictly  limited :    no   gen- 
eral right 349 

Constitutional  right  of  legislature  to  interfere  with  parental  rights  and 

duties 350 


CHAPTER  IV. 

THE    parent's    rights    AND    LIABILITIES    FOR    THE   CHILD's    INJURIES  AND 

FRAUDS. 

Parental  right  of  action  where  child  is  injured ;  in  addition  to  child's 

right 351 

Foundation  of  right,  the  loss  of  services 351 

Rights  and  remedies  enlarged  by  statute 352 

Incidents  of  such  suits 353 

Enticement,  abduction,  and  other  suits  ;  limitation  of  right .     .     .  354 

Suits  for  seduction  of  child 355 

Damages  in  actions  for  the  child's  Injuries 359 

Parental  liability  where  child  is  the  injuring  party 361 

Child's  own  property  answerable 362 

Doubtful  whether  parent  is  liable  for  child's  torts 362 


CHAPTER   V. 

DUTIES   AND   RIGHTS   OF   CHILDREN,  WITH    REFERENCE   TO   THEIR   PARENTS. 

General  duties  of  children  with  reference  to  parents 364 

How  far  bound  to  support  parents 365 

Rights  of  children  in  general  with  reference  to  parents 366 

The  emancipation  of  minor  children 367 

How  emancipation  is  brought  about 368 

The  legal  effect  of  emancipation 371 

Rights  of  full-grown  children 372 

Their  contracts  with  their  parents 374 


CONTENTS.  XIX 

Rights  of  children  as  heirs 376 

Advancements  ;  expectant  estates 376 

Legacies  of  children  ;  rights  by  descent  and  distribution     .     .     .  378 

Step-children  ;  quasi  relation  of  parent  and  child 378 

CHAPTER  VI. 

ILLEGITIMATE   CHILDREN. 

Illegitimate  children  ;  their  peculiar  footing 379 

Disability  of  inheritance 379 

At  common  law 379 

Civil-law  rule  as  to  illegitimate  children 380 

Right  of  inheritance  in  America 380 

Whether  the  mother  is  preferred  to  the  putative  father 381 

Rule  as  applied  in  matters  of  custody 382 

Maintenance  of  illegitimate  children 384 

General  rights  of  action  as  to  illegitimate  children 386 

Bequests  to  illegitimate  children 386 

Tendency  of  the  American  decisions 388 

Guardianship  of  illegitimate  children 388 


PART   IV. 

GUARDIAN   AND   WARD. 

CHAPTER   I. 

OF   GUARDIANS   IX    GENERAL;    THE   SEVERAL   KINDS. 

Guardianship  defined ;  application  to  person  and  estate 389 

Classification  of  guardians  of  minors  in  England 390 

Obsolete  species  of  guardianship 390 

Guardianship  by  nature  and  nurture 391 

Guardianship  in  socage 392 

Testamentary  guardianship 393 

Chancery  guardianship 395 

Guardianship  by  election  of  infant 398 

Classification  of  guardians  of  minors  in  United  States 399 

Guardians  by  nature  and  nurture,  socage  and  testamentary      .     .  399 

Chancery  and  probate  guardianship 400 

Guardianship  at  civil  law 402 

Guardians  of  other  than  minor  wards 403 

Guardians  for  special  purposes 405 

Guardians  ad  litem 405 


XX  CONTENTS. 


CHAPTER  II. 

APPOINTMENT    OF    GUARDIANS. 

How  all  guardians  are  in  general  appointed 406 

Natural  and  socage  guardians  act  under  authority  of  law 406 

What  constitutes  testamentary  guardianship 407 

Guardianship  by  appointment  of  the  infant 409 

Chancery  and  probate  guardians  are  judicially  appointed 410 

Jurisdiction,  how  and  when  exercised 410 

The  selection  of  such  guardians 414 

Method  of  appointment 419 

Effect  of  the  appointment 420 

Civil-law  rule  of  appointing  guardians 422 


CHAPTER   III. 

TERMINATION    OF   THE   GUARDIAN'S   AUTHORITY. 

How  guar.lian's  authority  is  terminated 423 

Guardianship  ceases  by  natural  limitation  or  sooner 423 

Death  of  the  ward 424 

Marriage  of  the  ward 425 

Death  of  the  guardian 426 

Resignation  of  the  guardian 426 

Removal  and  supersedure  of  the  guardian 429 

Marriage  of  female  guardian  ;  its  effect 433 

Other  cases  where  a  new  guardian  may  be  appointed 434 


CHAPTER   IV. 

NATURE   OF   THE   GUARDIAN'S   OFFICE. 

Guardianship  relates  to  person  and  estate 43.5 

Guardianship  of  the  person  in  general 435 

Guardianship  of  the  estate  in  general 435 

The  two  functions  generally  united 436 

Whether  a  guardian  is  a  trustee 437 

Joint  guardians 438 

Judicial  control  of  the  ward's  property 440 

The  union  of  guardianship  and  other  trusts  in  one  person       ....  441 

Administration  durante  minore  cetale 442 

Quasi  guardianship 443 

Conflict  of  laws 443 

Conflict  as  to  the  ward's  person 443 

Conflict  as  to  the  ward's  property 444 

Constitutional  questions  relating  to  guardianship 446 


CONTENTS.  Xxi 
CHAPTER   V. 

RIGHTS    AXD   DUTIES   OF    GUARDIANS   COXCERXIXG   THE   WARD's    PEUSON. 

Guardian,  stands  in  place  of  parent 448 

The  chief  right,  that  of  custody 448 

Chancery  jurisdiction  in  custody 448 

Conflict  between  guardian  and  surviving  parent 450 

Access  soraetiuies  granted 451 

Proceedings  on  writ  of /;a5ea.?  cor^)!/.? 451 

Custody  as  to  insane  persons  and  spendthrifts 454 

Right  of  guardian  to  change  ward's  domicile 452 

And  to  carry  ward  out  of  jurisdiclion 453 

Other  rights  of  the  guardian  considered 454 

Like  those  of  a  parent,  but  limited  as  to  ward's  services,  &c.  .     .  454 

Duties  of  the  guardian  in  general 455 

Liability  for  support  limited  to  the  ward's  estate 455 

But  guardian  may  by  contract  bi'come  liable 456 

Expenditure  of  ward's  property  for  his  support 457 

Rule  not  to  exceed  income  a  general  one 458 

Allowance  of  maintenance  in  chancery 459 

Duty  as  to  education  of  the  ward 460 

CHAPTER  VI. 

RIGHTS   AND    DUTIES   OF    THE    GUARDIAN   AS   TO    THE   WARD's    ESTATE. 

In  general 461 

Leading  principles  to  be  observed 461 

General  powers  and  duties  of  the  guardian 461 

Right  of  suit  and  arbitration 462 

How  lar  guardian  binds  ward's  estate  by  his  contract 4(i4 

Title  to  promissory  notes 465 

Conversion  of  the  ward's  property  ;  sale  and  exchange  of  property      .  466 

Limit  of  guardian's  responsibility  in  management 468 

Management  of  the  ward's  real  estate  in  detail 471 

Management  of  the  ward's  personal  estate  in  detail 473 

Investment  of  ward's  funds 475 

When  guardian  is  chargeable  with  interest 477 

Speculation  with  ward's  funds,  &c 478 

CHAPTER   VII. 

SALES   OF   THE   WARD's   REAL   ESTATE. 

In  sales  of  ward's  personal  estate,  a  liberal  rule  applies 480 

But,  in  general,  chancery  cannot  sell  ward's  lands 480 


Xxii  CONTENTS. 

Chancery  leaves  infant's  right  to  disaffirm  unimpaired     ....  481 

Rule  as  to  conversions,  purchases,  &c 481 

Civil-law  rule  on  the  subject 482 

Legislative  authority  may  intervene 482 

American  statutes  permitting  such  sales  ;  their  main  features  .     .  482 

The  statutory  sale  to  be  conducted  carefully 483 

Essentials  of  the  purchaser's  title  in  statutory  sales 484 

Irregularities  which  are  immaterial ;  those  which  make  the  sale 

voidable  by  certain  parties  ;  those  which  make  it  void      .     .     .  484 

Sales  by  non-resident  guardians 486 

New  York  chancery  rule  as  to  sales  ;  American  equity  rules      .     .     .  487 


CHAPTEE   Vlir. 

THE   guardian's   BOND,    INVENTOKY,    AND   ACCOUNTS. 

The  guardian's  bond     .     .     .     .     " 488 

English  rule  as  to  recognizance  ;  receiver's  duties 488 

Bonds  of  probate  and  other  guardians  in  this  country     ....  489 

Liability  of  sureties 491 

General  principles  applicable  to  bonds 493 

The  guardian's  inventory 494 

The  guardian's  accounts 494 

Distinction  between  the  final  and  intermediate  accounts       .     .     .  495 

Practice  in  the  United  States 495 

Items  allowed  the  guardian 499 

Compensation  of  guardians 500 

Suits  on  the  probate  bond  for  default  and  misconduct 501 

Enforcement  of  sureties' liability 502 

Indemnity  of  sureties 503 


CHAPTER  IX. 

EIGHTS   AND   LIABILITIES   OF   THE   WARD. 

General  rights  of  the  ward 504 

Remedies  against  his  guardian 505 

Action  ol'  account  after  guardianship  is  ended 506 

Ward's  right  to  recover  embezzled  property,  and  to  have  fraudulent 

transactions  set  aside 507 

Ward's  right  to  repudiate  unauthorized  acts  ;  rule  of  election   .     .     .  509 

Right  to  reopen  accounts 514 

Election  as  to  guardian's  bargains  with  ward's  funds      ....  510 

Transactions  between  guardian  and  ward 512 

Gifts  to  guardian  treated  with  suspicion 512 

Such  questions  determined  on  settlement  of  accounts     ....  514 

Transactions  after  guardianship  is  ended 515 

Marriage  of  ward  in  chancery 516 


CONTENTS.  XXlll 

PAET    V. 
INFANCY. 

CHAPTER    I. 

THE   GENERAL   DISABILITIES    OF   INFANTS. 

Age  of  majority 

Disabilities  of  persons  under  that  age ^20 

•        •  '')90 

Legislative  emancipation "^-^ 

Conflict  of  laws  as  to  majority "^-" 

Infant's  risht  of  holding  office ^21 

Infant's  responsibility  for  crime ^""^ 

Infant's  criminal  complaints "^* 

Whether  infants  may  make  a  will ^-'* 

Testimony  of  infants ^"" 

Marriage  settlements  of  infants ^-" 


CHAPTER    II. 

ACTS   VOID   AND   VOIDABLE. 

Void  and  voidable  contracts  of  infants  in  general 532 

General  principle  that  infants  are  specially  protected  by  law      ...  532 

Test  of  void  and  voidable  contracts 532 

Privilege  of  avoiding  is  personal ;  rights  of  other  parties      .     .     .     .  53-i 

What  acts  are  void  on  infant's  part;  what  are  voidable 536 

Bonds,  notes,  and  deeds  considered 538 


Rule  of  Zouch  v.  Parsons 


538 


Voidable  purchase  of  infant 539 

Letters  of  attorney  and  cognovits 540 

Miscellaneous  acts  voidable  and  not  void 542 

Gifts  of  an  infant 543 

Infant's  trading  contracts 

Summary  of  doctrine  as  to  void  and  voidable  contracts 545 

Period  of  ratification  usually  that  of  reaching  full  age 546 

Disaffirmance  of  contracts  during  minority 546 


CHAPTER    in. 

ACTS   BINDING   UPON   THE   INFANT. 

General  principle  of  binding  acts  and  contracts 547 

Contracts  for  necessaries,  the  most  important  class 547 

Wliat  are  an  infant's  necessaries     . 548 

Education,  house  repairs,  legal  expenses,  considered     ....  550 


XXiv  CONTENTS. 

Trading  contracts  not  included 552 

Province  of  court  and  jury 555 

Money  paid  infant  for  necessaries 555 

Infant's  bonds  and  notes  for  necessaries 556 

Certain  other  binding  contracts 558 

Contracts  relative  to  the  marriage  relation 558 

Acts  which  do  not  touch  infant's  interest 559 

Infant  shareholders,  and  defendants  in  equity 559 

Acts  which  the  law  would  compel 559 

Contracts  binding  because  of  statute 560 

Infant's  contract  of  enlistment 560 

Indentures  of  infants 560 

Contracts  of  service,  how  construed 561 

Whether  compensation  is  due  when  infant  avoids 561 

CHAPTER    IV. 

THE   INJURIES   AXlT  FRAUDS    OF   INFANTS. 

Those  committed  by  infants  distinguished  from  those  suffered  by  him  .  563 

Injuries  and  frauds  committed  by  infants 563 

Rule  of  infant's  liability 563 

Not  responsible  for  torts  arising  from  contracts 56-1 

Equitable  principle  of  later  cases 565 

Chancery,  civil-law,  and  statutory  rules 669 

Injuries  and  frauds  suffered  by  infants 570 

General  right  to  sue 570 

Except  where  a  trespasser 571 

Negligence  of  child's  parent 571 

Joint  wrong-doers 573 

Arbitration  and  compromise  of  torts  ;  miscellaneous  points  ....  573 

CHAPTER    V. 

RATIFICATION   AND   AVOIDANCE   OF    CONTRACTS. 

Infants  may  ratify  and  confirm  or  avoid  voidable  contracts    ....  675 

Rule  as  affected  by  statute 575 

Lord  Tenterden's  act  construed 575 

Other  statutes  considered 577 

American  doctrine  of  ratification 677 

Conflicting  decisions 579 

Summary  of  the  doctrine 682 

Express  repudiation  and  disafHrmance 582 

Ratification  as  concerns  infant's  real  estate 584 

Whether  entry  is  necessary 586 

Rule  as  to  infant's  purchases 588 

Other  points  as  to  ratification 590 

Infant  should  place  other  party  in  statu  quo 591 


CONTENTS.  XXV 


CHAPTER    VL 


ACTIONS   BY   AND   AGAINST   INFANTS. 


Actions  at  law  by  infants 592 

Infants  sue  at  law  by  guardian  or  prochein  ami 592 

They  cannot  sue  by  attorney  or  in  person 593 

How  the  inochein  ami  is  appointed 594 

Liability  of  j:»rocAem  ajwt 595 

Actions  at  law  against  infants 596 

Infants  must  defend  by  guardian  only 596 

Guardians  ad  litem 596 

Matters  of  practice  in  suits  against  infants 596 

Equity  proceedings  by  or  against  infants 598 

Equity  proceedings  correspond  to  those  at  law 598 

Chancery  practice  relative  to  infants  .     •     .     « 598 


PART   VI. 

MASTER   AND   SERVANT. 
CHAPTER    I. 

NATURE  OF  THE  RELATION;  HOW  CREATED  AND  HOW  TERMINATED. 

Nature  of  the  relation 599 

Relation  of  master  and  servant  defined 599 

Rule  of  classification 601 

Relation  of  master  and  workman 602 

Councils  or  courts  of  conciliation COS 

Trade  associations 604- 

Relation  of  master  and  apprentice 604 

Relation  of  master  and  hired  servant 606 

Contract  of  hiring 607 

Contract  affected  by  statute  of  frauds 609 

Restraint  of  trade  and  service  for  unreasonable  term      ....  609 

Service  and  agency 611 

How  this  contract  is  terminated 612 

Servant's  occupation  of  premises 615 

CHAPTER   n. 

MUTUAL   OBLIGATIONS    OF    MASTER   AND   SERVANT. 

Obligations  specially  resting  upon  the  master 616 

Master's  obligation  as  to  discipline,  &c 616 


XXVI  CONTENTS. 

Necessaries  of  the  servant 617 

Whether  the  master  must  find  work 617 

Master  must  indemnify  servant 618 

Duty  to  receive  into  service  the  person  engaged 618 

Remedies  against  master  for  breach  of  contract 618 

Rules  for  payment  of  wages 620 

Apportionment  and  quantum  meruit 621 

Representations  of  servant's  character ;  guaranty 625 

Obligations  specially  resting  upon  the  servant 615 

Servant  bound  to  perform  engagement 625 

Accountability  to  his  master 626 

Servants  may  be  witnesses 627 

CHAPTER   III. 

RIGHTS    AXD   LIABILITIES    OF    THE    SERVANT   AS   TO    THIRD   PERSONS. 

'Servants  not  personally  liable  on  their  contracts 628 

Liability  of  servants  for  their' torts  and  frauds 629 

Torts  of  government  agents 630 

Criminal  accountability  of  servant 630 


CHAPTER   IV. 

GENERAL   RIGHTS    AND    LIABILITIES    OF    THE   MASTER. 

General  rights  of  master 631 

Right  of  action  for  injuries  to  servant 680 

Seduction,  enticement,  and  harboring 631 

Right  to  servant's  acquisitions 633 

General  liabilities  of  master 633 

Liability  for  servant's  acts  as  agent 633 

Application  of  rule  to  contracts 634 

Liability  of  master  for  servant's  torts  as  to  third  persons 636 

Extent  of  this  liability ;  rule  of  respondeat  superior 637 

Not  liable  for  acts  wanton  and  beyond  scope  of  employment  .     .  638 

Rule  as  to  real  estate 641 

Master  not  liable  to  servant  for  tort  of  a  fellow-servant 642 

But  liable  for  his  own  negligence 643 

Who  are  servants  and  fellow-servants 644 

Master  not  criminally  responsible  for  servant's  misconduct    ....  646 

Observations  on  law  of  master  and  servant 647 


TABLE   OF   CASES   CITED. 


A.  &B. 

Aaron  v.  Harley 
Abbey  v.  Deyo 
Abbott  V.  Bayley 

V.  Converse  i 

V.  Mackinley 
V.  Winchester 
Abdil  V.  Abdil 
Abell  V.  Warren 
Abernethy  v.  Abernethy 
Abington  v.  North  Bridgewater 
Abraham  v.  Newcome 
V.  Reynolds 
Abrahams  v.  Kidney 
Abshire  v.  Mather 
Ackerman  v.  Bunyon 
Ackert  v.  Pults 
Ackley  v.  Dygert 
Ackly  V.  Tarbox 
Acosta  V.  Robin 
Acton  V.  Peirce 
V.  White 
Adams  v.  Adams 
V.  Curtis 
V.  Cutright 
V.  Palmer 
V.  Ross 

Adams  Express  Co.  v.  Trego    G14,  626 
Adamson  v.  Arniitage  189,  193 

Addison  v.  Bowie  322 

Aguilar  v.  Aguilar  130 

Aln-enfeldt  v.  Alirenfeldt  341 

Airkart  v.  Murphy  135 

Alabama,  &c.,  Ins.  Co.  v.  Boykin     153 
Alban  v.  Pritchett  04 

Albany  Fire  Ins.  Co.  v.  Bay  153 

Albee  v.  Carpenter  ll*j 

V.  Wynian  294 

Albert  v.  Perry  416,  417 

V.  Winn  263 

Albin  V.  Lord  232,  288 

Albro  V.  Jaquith  630 


PAGE 

31 

549 

249 

295 

;68,  369 

98,  100 

275 

596 

542 

129 

312 

134 

642,  644 

359 

295 

582 

154 

485 

238 

384 

266 

198 

57,  171,  310,  373 

243 

46 

24 

538 


Alcock  V.  Alcock 
Alderman  v.  Tirrell 
Aldrich  v.  Cooper 
V.  Grimes 
Alexander,  In  re 

V.  Alexander 
V.  Crittenden 
V.  Crosbie 
V.  Frary 
V.  Gibson 
V.  Heriot 
r.  Miller 
Alfred  v.  McKay 
Allen  V.  Allen 
V.  Coster 
V.  Crosland 
V.  Gaillard 
V.  Hightower 
V.  Hooper 
V.  Little 

V.  London,  &c.,  R. 
V.  McCuUough 
V.  Minor 
V.  Peete 
V.  Scurry 
V.  Walker 
r.  Wilkins 
AUfrey  v.  AUfrey 
AUie  V.  Schmetz 
Allison  V.  Norwood 
AUman  v.  Owen 
Alna  V.  Plumnier 
Alston  V.  Alston 

V.  Munford 
Alsworth  V.  Cordtz 
Altenius'  Case 
Alter's  Appeal 
Althorf  I'.  Wolfe 
Alton  V.  Mulledy 
Alverson  v.  Jones 
Ambrose  v.  Kenison 
American,  &c.,  Ins.  Co. 
Ames  V.  Chew 
V.  Foster 


R.  Co 


PAGE 
67 

596 
175 
583 
280 
438,  499 
121,  122 
273 
597 
635 
579 
100 
384 
129,  308,  539 
323,  326 
491 
476 
281 
288 
258 
637 
136 
537 
416 
145 
226 
163 
516 
289 
605 
496 
94 
443,  490 
439,  441 
535,  586 
301 
260 
644 
611 
214 
166 
V.  Owen   154 
301 
238,  239 


XXVlll 


TABLE  OF   CASES    CITED. 


124, 

^46, 

69,  T2, 

831, 


Ames  i:  Norman 

Ammoiis  v.  People  492, 

Amor  V.  Fearon 
Anderson  v.  Anderson 
V.  Brooks 
i\  Darby 
V.  Gregg 

V.  Layton  486, 

V.  Mather  487, 

V.  McGowan 
V.  Roberts 
V.  Smith 
V.  Warde 
V.  "Watson 
Anderton  ;•.  Gates 
Andover  v.  Merrimack  County  122, 
Andrews,  In  re  407, 

V.  Andrews 
V.  Askey 
V.  Garrett 
V.  Jones 
V.  Partington 
V.  Salt 
Andrews'  Heirs  Case 
Angel  V.  Felton 

V.  ]\lcLellan 
Angle  V.  Hanna 
Anne  Walker's  Matter 
Appleton  V.  Rowley 
Apthorp  V.  Backus 
Archer  v.  Frowde 
V.  Hudson 
V.  Rorke 
Archley  v.  Sprigg 
Ardis  V.  Printup 
Armfield  v.  Armfield 

V.  Tate 
Armstrong  t'.  Armstrong   ■ 
V.  McDonald 
V.  Ross  230, 

V.  Stone 

V.  Walkup  426,  443,  496, 
Arnold  v.  Bidwood 
V.  Earle 

V.  Norton  353, 

V.  Ruggles 
Arnolds  v.  Woodhams 
Arrington  v.  Yarborougli 
Arthur  v.  Arthur  189,  227, 

Arthur's  Appeal  402, 

Arundell  v.  Phipps 
Ashby  V.  Ashby 

V.  Jolinston 
Ashfield  V.  Ashfield 
Ashley  v.  Harrison 
Aslilin  V.  Langton 
Ashton  V.  Ashton 
V.  Aylett 
Ash  worth  v.  Stanwix  643, 

Askew  V.  Dupree 
Aspdin  V.  Austin 
Atcherley  v.  Vernon 
Atcheson  v.  Everitt 


300 
502 
614 
195 
203 
47] 
233 
510 
589 
179 
282 

74 
597 
462 
450 
372 
451 
282 
360 
330 
227 
325 
460 
493 
102 
553 
625 
326 
194 
593 
594 
375 
189 
306 
264 
264 
588 
112 
346 
325 
340 
500 
139 
525 
369 
117 
199 
126 
242 
410 
282 
124 
491 
584 
632 
540 
559 
222 
645 

44 
618 
191 
647 


Atchison  v.  Bruff  554 

Atkin  V.  Acton  613 

Atkins  V.  Curwood  81,  83 

Atkinson,  Ex  parte  447 

V.  Atkinson  478 

V.  Medford  29 

V.  Phillips  281 

t'.  Whitehead  470,  474 

Atkyns  v.  Pearce  90 

Atlee  V.  Hook  255 

Attorney-General  v.  Riddle         84,  105 

V.  Siddon  647 

Atwood  V.  Atwood  185 

V.  Meredith  250 

Aucker  v.  Levy  266 

Auster  v.  Powell  376 

Austin  V.  Wilson  104 

Averson  v.  Lord  Kinnaird  64,  66 

Avery  v.  Griffin  75,  136,  224 

Ayer  v.  Warren  76 

Aylitr  V.  Archdale  556 

Ayliffe  V.  Tracy  267 

Ayling  i-.  Whicher  106 

Aylward  v.  Kearney  513 


B. 


B.  &  B.  31 

Baason  r.  Baehr  624 

Babb  V.  Perley  144,  149 

Babcock  v.  Doe  536 

V.  Eckler  282 

V.  Smith  265,  301 

Bachman  v.  Chrisman  215 

Bacon  v.  Taylor  462,  471 

Badger  v.  Phinney  566,  691 

Badgley  v.  Decker  359 

Bagsiet  V.  Meux  198,  254 

Bagiey  v.  Mollard  388 

Bailey,  Ex  parte  334 

V.  Bailey  61 

V.  Bamberger  591 

V.  Calcott  91 

V.  Duncan  143 

V.  Fiske  28 

V.  Pearson  215,  232 

V.  Rogers  502 

Baillie  v.  KeU  615 

Bain  v.  Doran  160 

V.  Lescher  190 

Bainbridge  v.  Pickering  553 

Baker  v.  Baker  37,  349 

V.  Barney  94 

V.  Bolton  109 

V.  Bradley  198,  375 

V.  Chase  185 

V.  Gregory  233 

V.  Haldeman  861,  362 

V.  Hall  116 

V.  Hathaway  235 

V.  Lovett  542,  574 

V.  Ormsby  462 


TABLE   OF   CASES   CITED. 


XXIX 


Baker  u.  Richards 

475 

V.  Sampson 

95 

V.  Wood 

492 

V.  Young 

104 

Baker's  Trusts,  In  re 

196 

Bakers  v.  Winfrey 

605 

Balch  V.  Sniitli 

408 

Baldwin  v.  Baldwin 

133 

V.  Carter 

151,  266 

V.  Casella 

637 

V.  Parker 

64 

Bale  V.  Coleman 

274 

Ball  V.  Ball 

336,  415 

V.  Bennett 

102 

V.  Bruce 

359 

V.  BuUard 

215 

V.  Coults 

133 

V.  Montgomery 

133 

t'.  Storie 

273 

Ballard  v.  Brummilt 

491 

V.  Russell 

109 

Ballin  v.  Dillaye 

230 

Ballou  V.  Farnum 

645 

Baltimore,  &c.,  R.  R.  Co.  v.  State   571, 

572 

Bamford  v.  Shuttleworth  628 

Banbury  Peerage  Case  306 

Bangor  v.  Readfield  370 

Bank  r.  Garlinghouse  238 

Bank  of  Albion  v.  Burns  234 

Bank  of  Louisiana  v.  Williams  68 

Bank  of  Virginia  v.  Craig  505 

Banks  v.  Conant  349 

Bannister  v.  Bannister  454 

Banton  v.  Campbell  288 

Barbat  v.  Allen                     ,  67 

Barbae  v.  Armstead  59 

Barber  v.  Harris  149 

V.  Slade  119,  121 

V.  State  386 

Bard  v.  Wood  497 

V.  Yohn  639 

Bardwell  v.  Purrington  605 

Barela  v.  Roberts  384 

Barham  v.  Earl  of  Clarendon  264 

Barker  v.  Dayton  186 

V.  Dixie  64 

Barkshire  v.  State  28 

Barlow  v.  Bishop  245 

V.  Grant  327 

Barnaby  v.  Barnaby  510,  545,  580 

Barnard  v.  Ford  130 

I'.  Hevdrick  596 

Barncord  v.  Kuhn  282,  289 

Barnes  v.  Allen  57 

V.  Barnes  341 

V.  Camack  64 

V.  Compton  514 

V.  Harris  104,  105 

I'.  Haybarger  235 

V.  Jarrett  84 

V.  Powers  430 

V.  Underwood  160 


Barnet  v.  Commonwealth  462 

Barney  v.  Saunders  477 

Barns  v.  Branch  434 

Barnum  v.  Frost  456 

Barrack  v.  M'Culloch  195,  254 

Barrere  v.  Barrere  340 

Barrett  v.  Churchill  484 

r.  Oliver  208 

V.  Seward  522 

Barron  v.  Barron        119,  122,  129,  131, 

133,  214,  243,  282,  286 

Barry  v.  Barry  415 

Barrymore  v.  Ellis  198 

Bartholemew  v.  Finnemore  591 

Bartlett,  Ex  parte  453 

V.  Bartlett  228,  234 

V.  Cowles  426 

V.  Gillard  226 

V.  Gonge  185 

V.  Janeway  121 

Bartley  v.  Richtmeyer  356,  357 

Barto's  Appeal  166 

Barton  v.  Beer  249 

V.  Morris  36 

Bartonshill  Coal  Co.  v.  Reid             642 

Barwick  v.  Rackley  593,  594 

Basford  v.  Peirson  235 

Bass  V.  Cook  454 

Batchelder  v.  Sargent  238 

Bates  V.  Dandy  120,  124 

V.  Enright  94 

V.  Seely  288 

V.  Shraeder  149 

Battle  V.  Vick  414 

Bauer  i-.  Bauer  232 

Baum  V.  Mullen  215 

Bavington  v.  Clarke  560 

Baxter  r.  Bodkin  154 

V.  Bush  566,  588 

V.  Nurse  607 

V.  Prickett  248 

Bay  V.  Gunn  580 

Bayard  v.  Hoffman  •                     279 

Bayler  v.  Commonwealth  155 

Bayley  v.  Manchester,  &c.,  R.  R. 

Co.  641 

Baylis  v.  Dineley  537 

Bayspoole  v.  Collins  282 

Bazeley  v.  Forder  90,  322 

Beach  v.  Beach  294 

V.  MuUin  607,  613,  622 

V.  Ranney  107 

V.  White  282 

Beachcroft  v.  Beachcroft  387,  388 

Bcal  V.  Harmon  409 

V.  Warren  235,  281 

Beall  V.  Beall  312 

Reals  V.  Cobb  234 

Bean  v.  Smith  282 

Bear  v.  Hays  243 

Bear's  Administrator  v.  Bear             214 

Beard  v.  Webb  245 

Beasley  v.  Magrath  326 


XXX 


TABLE  OF   CASES   CITED. 


Beasley  v.  Watson 

324,  459,  474  1 

Beattie  v.  Jolinston 

.   445  1 

Beaufort  v.  Collier 

203 

Beaumont  v.  Weldon 

81 

Beaver  ;'.  Lane 

143 

Beazley  v.  Harris 

426,  508 

Becher,  Ex  pdrte 

486 

Beckham  v.  Drake 

619 

Bedell  v.  Bedell 

340,  341 

V.  Constable 

393,  408,  436 

V.  Lewis 

596 

Bedford  v.  M'Kovvl 

360 

Beech  v.  Keep 

284 

Beecher  v.  Crouse 

462 

Beeler  v.  Bullett 

636 

V.  Dunn 

457 

V.  Young 

538,  649,  555 

Beeston  v.  CoUyer 

614 

Beilby,  Ex  parte 

193 

Belford  v.  Crane 

282 

Bell  V.  Bell 

179 

V.  Drummond 

/                 620 

V.  Hallenback 

374 

V.  Herrington 

605 

V.  Jasper 

492 

V.  Morrison 

581 

Bellefontaine,    &c.,   K. 

R.    Co.   V. 

Snyder 

572 

Beller  v.  Jones 

343 

V.  Marchant 

545 

Bellinger  v.  Shafer 

473 

Belloc  V.  Davis 

155 

Bellows  V.  Kosenthal 

247 

Bellune  v.  Wallace 

492 

Belt  V.  Ferguson 

270 

Belton  V.  Briggs 

579,  586 

V.  Hodges 

544 

Beniis  v.  Call 

237 

Benadum  v.  Pratt 

295 

Benedict  v.  Martin 

641 

Benham  v.  Bishop 

679,  580 

Benison  v.  Worsley 

420 

Benjamin  v.  Bartlett 

102 

V.  Benjamin 

76, 100 

Bennet  v.  Bennet 

340,  342,  350 

Bennett  v.  AUcott 

356 

V.  Byrne        416/417,  418,  490 

V.  Davis 

188,  540 

V.  Gillett 

367 

V.  Ives 

629 

V.  Smith 

32,  57,  58 

V.  Welder 

528 

Benson  v.  Benson 

196 

V.  Kemington 

345 

Bent  V.  Bent 

285 

V.  Manning 

515,  549,  553 

Bently  v.  Cooke 

65 

V.  Griffin 

83 

V.  Shreve 

478 

Benton  v.  Benton 

36 

Benwell  v.  Inns 

610 

Benyon  r.  Jones 

73 

Beresford  v.  Archbishop  of  Armagh  227 


Bergen  v.  Udall 
Berger  v.  Jacobs 
Berreblock  v.  Michael 
Berry  v.  Donley 
V.  Owens 
I'.  Johnson 
Bertrand  v.  Elder 
Best  V.  Best 

V.  Givens 
Bethlem  v.  Roxbury 
Bethune  v.  Green 
Bettle  V.  Wilson 
Betton's  Trust  Estates,  hi  re 
Betts  V.  Betts 

V.  De  Vitre 
V.  Kimpton 
Bibb  V.  McKinley 
Bigelow  V.  Grannis 
V.  Kinney 
Bill  V.  Cureton 
Billings  V.  Baker 
V.  Taylor 
Bindley  v.  MuUoney 
Binion  v.  Miller 
Binnington  v.  Wallis 
Bird  V.  Brown 
V.  Davis 
V.  Jones 
V.  Pegg 
V.  Pegrum 

V.  Randall  625, 

Birdsong  v.  Birdsong 
Birt  V.  Barlow 

V.  Bontinez 
Biscoe  V.  Kennedy 
Bishop,  In  re 

V.  Bishop 
V.  Blair 
V.  Shepherd 
Bissell  V.  Bissell 
Black  V.  Bryan 
V.  Galway 
V.  Hills 
V.  Tricker 
V.  Whitall 
Blackborne  v.  Haigh 
Blackburn  v.  Crawfords  42, 44 

V.  Mackey 
Blacklow  V.  Laws 
Blacl^man  v.  Baumann 

V.  Davis 
Blackmore  v.  Brider 
V.  Shelby 
Blackwell  v.  State 
Blades  v.  Free 
Blagden,  Ex  parte 
Blake  v.  Blake 

V.  Douglass 
V.  Lanyon 
V.  Leigh 
V.  Lord 

V.  Pegram         439,  496 
Blaker  v.  Cooper 


375 
215 
78 
154 
881 
419 
282 
37 
580 
384 
470 
294 
142 

218,  231 
637 
161,  162 
443 
590 
584 

281,  284 
164 
185 
293 
516 
386 
634 
155 
93 
593 
194 

631,  632 

285 

109 

47 

221 

317 

65 

157 

349 

42,43 

90,  230 

155 

585 

244 

377 

106 

,  305, 308 

329 

191,  192 

485,  486 
593 
28 
469 
527 
87,  180 
131 

153,  440 
559 
631 

317,  337 
66 

497,  500 
301 


TABLE  OF  CASES   CITED. 


XXXI 


Blanchet  v.  Foster 

270 

Blandford  v.  Marlborough 

272 

Blanflin,  In  re 

232 

Blaiikensliip  v.  Stout 

586 

Blaymire  v.  Haley 

357 

Bledsoe  v.  Britt 

429 

Blevins  v.  Buck 

213 

Bliss  I'.  Sheldon 

274 

Blodgett  V.  Brinsniaid 

28 

Blodwell  V.  Edwards 

387 

Blogg  V.  Kent 

618 

Blonifield  v.  Eyre 

506 

Blossom  V.  Barrett 

34 

Blood  V.  Harrington 

593 

Blount  V.  Bestland 

116 

Bloxam  i-.  Elsee 

633 

Blue  V.  Marsliall 

464 

Blunt  V.  Melcher 

660 

Blythe  v.  Granville 

274 

Boast  V.  Firth 

605 

Bobe  V.  Frowner 

105 

Bobo  V.  Bryson 

371 

V.  Hansell 

582 

Boggs  V.  Adger 

476 

Boini  V.  Headley 

374 

Bold  V.  Hutchinson 

268, 

272 

Bolden  v.  Nicholay 

224 

Bolingbroke  v.  Kerr 

136 

Bollin  V.  Shiner 

46 

Bolton  V.  Miller 

360, 

368 

Boniar  v.  MuUins 

289 

Bond,  Ex  parte                    324 

414 

420 

V.  Lockwood             321, 

472, 

491, 

500 

513 

V.  Simmons 

126 

132 

Bones'  Appeal 

606 

Bonham  v.  Badgley 

28 

Bonnell  v.  Berryhill 

448 

449 

Bonney  v.  Reardin 

74 

,558 

Bonsail's  Case 

467 

Bonshiugh  v.  Bonslaugh 

145 

Boobier  v.  Baobier 

370 

Boody  V.  McKenney           579, 

585 

588 

Bookter,  Succession  of 

431 

Bool  V.  Mix                  538,  539 

546 

587 

Boon  V.  Bovvers 

446 

Boos  V.  Gomber 

232 

Booth  V.  Dean 

622 

Borst  V.  Spelman 

285 

Borton  v.  Borton 

529 

Boston  Bank  v.  Chamberlin 

584 

Boston  Glass  Manufactory  v. 

Bin- 

ney 

632 

Bostvvick,  Matter  of 

327 

,  457 

V.  Atkins 

586 

Bosvil  V.  Brander 

120 

,130 

Botham  r.  M'Intier 

467 

Bowen  t'.  Lebree 

218 

287 

Bowie  r.  Stonestrcet 

286 

Bowman's  Ap])eal 

472 

Bowyer's  Appeal 

145 

Boyd  V.  Boyd 

376 

,493 

V.  Blaisdell 

355 

Boyd  V.  Gault 
V.  Glass 
v.  Sappington 
Boyden  v.  Boyden 
Boyers  v.  Newbanks 
Boyes  v.  Bedale 
Bo\ett  V.  Hurst 
Boy  kin  r.  Ciples 
Boyle  V.  Brandon 

V.  Chambers 
Boynton  v.  Clay 

V.  Dyer 

r.  Hubbard 
Bracegirdle  r.  Heald 
Braekett  v.  Lubke 

r.  Wait 
Bracy  v.  Kibbe 
Bradford  ik  Goldsborough 

V.  Greenway 
Bradley  v.  Hughes 

V.  Pratt 

V.  State 
Bradshaw  i^.  Beard 

V.  Bradshaw 
Brame  v.  McGee 
Brand  v.  Abbott 
Bratney  i\  Curry 
Bray  v.  Wheeler 
Brayshaw  i\  Eaton 
Brazer  v.  Dean 
Brazier  ik  Clark 
Breadalbane  v.  Chandos 
Breadalbane  Case 
Bred  in  v.  Dwen 
Breed  v.  Judd 
V.  Pratt 
Brent  v.  Grace's  Adm'r 
Brett  V.  Green  well 
Brewer  v.  Swirles 
Bridge  v.  Bridge 
V.  Brown 
Briers  v.  Hackney 
Briggs  V.  Briggs 
V.  McCabe 
V.  Morgan 
V.  Titus 
Brigham  i-.  Boston,  &c.,  R.  R. 


679,  688, 

201,  202, 

496, 
009, 


537,  552, 

327, 
476, 


648, 
421, 


Co. 
400, 


V.  Wiieeler 
Brinton  v.  Hook 
Brisbane  v.  Bank 
Bristow  i".  Eastman 
Britter  v.  Robertson 
Britton  v.  Williams 
Broadus  ?•.  Rosson 
Hrock  V.  Parker 
Brockbank  v.  Whitehaven  Junction 

R.  R.  Co. 
Bromley  v.  Wallace 
Bronson  v.  Southbury 
Brook  i\  Brook 
V.  Turner 
Brooke  v.  Brooke  196, 


492 
444 
330 
589 
472 
313 
477 
208 
359 
154 
695 
614 
378 
618 
642 
153 
360 
282 
218 
196 
558 

61 
166 
438 
264 
477 
171 
371 
664 
171 
498 
272 

43 
456 
562 
605 
496 
133 
224 
284 
327 
613 

57 
646 

31 
234 

421 
407 
289 
474 
667 
237 
542 
457 
605 

108 

109 

672 

49 

252 
254 


XXXll 


TABLE   OF   CASES   CITED. 


Brooker  v.  Scott 

549 

Brookfiekl  v.  Allen 

94 

Brooks  V.  Brooks 

493,  506 

V.  Dent 

266 

V.  Martin 

171 

Brown  v.  Ackroyd 

79 

V.  Bamford 

198,  223 

V.  Belmarde 

310 

V.  Bonner 

273 

V.  Brown         236, 

285,  462,  530, 

531 

V.  Burk 

377 

V.  Caldwell 

635,  575 

V.  Carter 

282 

V.  Chase 

462 

V.  Christie 

486 

V.  Croft 

613 

V.  Deloach 

330 

v.  Dunham 

474 

V.  Fifield 

106 

V.  Gale 

144 

V.  Hull        / 

596 

V.  Jones 

265 

V.  Kemper 

215 

V.  Laselle 

66,  72 

V.  Lent 

630 

V.  Lynch 

313,  412,  413 

V.  McCune 

568 

V.  M'Donald 

874 

V.  Midgett 

91 

V.  ]\Iullins 

458 

V.  Patton 

90 

V.  Purviance 

638,  645 

V.  Ramsay 

346 

V.  Scott 

374 

Browning  i\  Reane 

29 

Bruce  v.  Burke 

33 

V.  "Wood 

147 

Bruin  v.  Knott 

324,  326 

Bruner  v.  Whcaton 

288 

Brunnel  v.  Witherow 

264 

Brunner's  Appeal 

74,  236 

Brunswick  v.  Litchfield 

47 

Brush  V.  Blanchard 

878 

Bryan  v.  Doolittle 

215 

V.  Jackson 

330 

V.  Manning 

485 

V.  Rooks 

162 

V.  Spruill 

121,  126 

r.  State 

632 

Bryant  ?-.  Bryant 

232 

V.  Craig 

477 

V.  Flight 

620 

V.  Merrill 

217 

V.  Richardson 

549 

Brydon  v.  Stewart 

643 

Bubliers  v.  Hardy 

135 

Buchanan  v.  Buchanan 

274 

V.  Deshon 

265 

V.  Turner 

258 

Buck  V.  Gilson 

233 

V.  Goodrich 

143, 165 

Buckell  V.  Blenthorne 


254 


Buckley  v.  Wells  231,  249 

Bucksport  V.  Rockland  371 

Buckworth  v.  Buckworth  823 

Buell  V.  Shuman  155 

Buffaloe  v.  Whitedeer  301 

Buford  V.  McLung  109 

Bugg  V.  Franklin  126 

Bulkley  v.  Noble  377 

Bullard  v.  Briggs  282 

Buller  V.  Harrison  629 

Bullock  V.  Babcock  362,  563,  564 

V.  Knight  137 

Bullpin  V.  Clarke  221 

Bumpas  v.  Dotson  490 

Bunker  v.  Bennett  67 

Bunn  V.  Winthrop  388 

Burchard  i\  Frazer  233 

Burclier  v.  Ream  232 

Burdens  v.  Amperse  •  288 

Burdick  v.  Burdick  318 

V.  Moon  234 

Burger  v.  Belsley  109 

Burgess  v.  Burgess  28 

V.  Carpenter  652 

Burghart  v.  Angerstein  552 

V.  Hall  554 

Burk  V.  Howard  100 

Burke,  Matter  of  323,  324 

Burleigh  v.  Coffin  114,  165,  166 

Burley  v.  Russell  568 

Burlingame  v.  Burlingame  368 

Burnaby  v.  Griffin  220 

Burnard  v.  Haggis  565 

Burnet  r.  Burnet  444 

Burnett  v.  Kinnaston  123 

Burnham  v.  Bennett  122 

V.  Dalling  496,  514 

V.  Holt  348 

V.  Seaverns  564 

Burns  i'.  Hill    .  567 

V.  Lynde  235 

Burr  V.  Sherwood  117 

V.  Wilson  371,  530 

Burrett  v.  Booty  95 

Burris  v.  Page  184 

Burritt )-.  Burritt  322 

Burrows  v.  Burrows  133 

Burson's  Appeal  216 

Burton  v.  Burton  73 

V.  Holley  257 

V.  Pierpont  175 

V.  Tunnell  441 

Burwell  v.  Corbin  595 

Bush  V.  Lindsey  87 

Bushnell  r.  Bishop  Hill  Colony         830 

Butterfield  r.  Ashley  354 

V.  Beall  147 

r.  Forrester  639 

V.  Heath  265,  282 

V.  Stanton  282 

Butler  V.  Breck  69,  559 

V.  Buckingham  153 

V.  Butler  322 


TABLE   OF   CASES    CITED. 


XXXlll 


Butler  r. 

Clieatham                            185 

V 

Freeman                       334,  396 

V 

Gastrin                              27,  28 

V. 

Slam                                     378 

V 

Tucker                                624 

Buzzell  1 

•.  Laconia,  &c.,  Co.                643 

Bybee  r. 

Sharp                             458,  514 

Byers  v- 

Des  Moines,  &c.,  R.  R.  Co.  595 

Byraiii  v 

.  McGuire                               640 

Byrne  v. 

Van  Hoesen                  399,  424 

c. 


Cadogan  v.  Kennett 

277 

Cadwell  v.  Slierman 

349 

Caffee  v.  Kelly 

112 

Caffey  i-.  McMicliael 

516 

CafFrey  r.  Darby 

473 

Caliill  V.  Campbell 

248 

V.  Patterson 

347 

Cairns  v.  Colburn 

285 

Caldwell  v.  Drake 

72 

V.  Renfrew 

256,  259,  261 

Calhoun  v.  Calhoun 

500 

Calkins  v.  Long 

94,  95 

Call  V.  Ruffin 

502 

Callahan  v   Patterson 

215 

Callo  (.'.  Brouncker 

614 

Calmady  v.  Calmady 

173 

Calvert  v.  Godfrey 

481 

Camden  v.  Mullen 

250 

V.  Vail 

235 

Camelin  v.  Palmer  Co. 

98 

Cameron  v.  Baker 

385 

Cammack  v.  Lewis 

179 

Canipau  v,  Shaw 

405 

Campbell  v.  Bainbridge 

274 

V.  Campbell 

349,  370,  374 

I'.  Cooper 

346,  632 

V.  French 

134 

r.  GuUatt 

44 

V.  Ingilby 

529 

V.  Mackay 

317,  454,  460 

V.  Stakes 

362,  566 

V.  Twemlow 

65 

V.  Wallace 

165 

V.  White 

230 

Campion  v.  Cotton 

166,  264 

Canajoharrie  r.  Johnson 

384 

Can  by  v.  Porter 

144 

Canefield  v.  Chamber 

109 

Caney  v.  Bond 

473 

V.  Patton 

80,  90,  94 

Canjolle  v.  Ferrie' 

306,  308 

Cannel  v.  Buckle 

266,  529 

Cannon  v.  Alsbury 

535 

V.  Caimon 

308 

V.  Grantham 

215 

Canovar  v.  Cooper 

347 

Cantine  v.  Pliillips 

87,88 

Cape  V.  Cape 

192 

Capehart  v.  Huey 

461 

Capel  V.  Powell  104,  300 

Card  V.  Patterson  154 

Carelton  v.  Haywood  105 

Carew  v.  Rutherford  604 

Carey  i-.  Berkshire  R.  R.  Co.  110 

Carl  V.  Wonder  102 

Carleton  v.  Earl  of  Dorset  269 

V.  Lovejoy  112 

Carlisle  v.  Town  of  Sheldon  110 

f.  Tuttle  313,  445 

Carll  i:  Prince  32 

Carlysle  i'.  Carlysle  477 

Carmichael  v.  Hughes  324 

V.  Wilson  4  58 

Carnahan  v.  Allderdice  537 

Carne  v.  Brice  193 

Carow  V.  Mowatt  521 

Carpenter  v.  Leonard  237 

V.  McBride  470 

V.  Mitchell  238 

V.  Moore  67 

V.  Schermerhorn  156 

Carr  v.  Carr  113 

V.  Clough  543,  546,  591 

V.  Eastabrooke  133 

V.  Taylor  116,  119,  134 

Carr's  Trusts,  In  re  157 

Carrell  v.  Potter  548,  579,  588 

Carrol  v.  Bird  625 

Carskadden  v.  McGhee    •  462 

Carson  i'.  Murray  185 

V.  Watts  349 

Cartw.  Rees  162 

Carter  v.  Anderson  226 

V.  Carter  130,  133,  216 

V.  Grimshaw  374 

V.  Howard  83 

V.  Towne  670 

V.  Wann  181 

Cartledge  v.  Cutliff  263 

Cartwright  v.  Bate  96 

v.  HoUis  212 

Carutliers  v.  Caruthers  529 

Cary  v.  Gary  512 

Casey  v.  Wiggin  120 

Casey's  Trusts,  In  re  274 

Cassedy  v.  Jackson  135 

Cassin  v.  Delany  104 

Castle  V.  Wilkinson  152 

Caswell  V.  Hill  282 

Case  V.  Phelps  282 

Cater  v.  Everleigh  206 

Cateret  v.  Paschall  1H8 

Cathcart  v.  Robinson  281 

Catherine  Strong,  In  re  530 

Cato  V.  Gentry  470 

Caton  V.  Rideout  219,  227 

Catron  v.  Warren  230 

Caughey  r.  Smith  354 

Caulk  V.  Prcon  16 

Cave  V.  Roberts  169 

Cavenaugh  v.  Ainchbacker  257 

Cawthorn  v.  Cawdrey  609 


XXXIV 


TABLE    OF   CASES   CITED. 


Cayzer  v.  Taylor 
Chadbounie  i-.  Rackliff 
Chamberlain  v.  Hazlevvood 

V.  Milwaukee  R.  R. 
Co. 
Chamberlin  i-.  Morgan 
Chambers  v.  Perry  113, 

Chambles  v.  Vick 
Cliampney,  Ex  parte 
Chandler  v.  Broughton 

V.  Commonwealth 
V.  Glover  581, 

V.  McKinney 
V.  Simmons 
Chandos  v.  Talbot 
Chaney  v.  Smallwood 
Cliapin  V.  Livermore 
Chapline  v.  Moore 
Chapman  v.  Foster 
V.  Qiay 
V.  New  York,  &c.,  R.  R. 

Co. 
V.  Tibbits 
V.  Williams 
Chappel  V.  Causey 
Chappie  V.  Cooper 
Charles  v.  Charles 

I'.  Coker 
Chase  v.  Chase 
V.  Elkins 
V.  F.athaway 
I'.  Smith 
Cheek  v.  Waldrum 
Cheesman  v.  Exall 
Cheever  v.  Wilson 
Cheney  v.  Arnold 
V.  Pierce 
Cheshire  v.  Barrett 
V.  Payne 
Chester  v.  Greer 
Chetwynd  v.  Chetwynd 
Cheuvete  v.  Mason 
Chew  V.  Beall 
Chew's  Estate 
Chicago  V.  Robbins 
Chicago,  &c.,  R.  R.  Co.  v.  Dunn 
V.  Jackson 

V.  McCarthy 
Child  V.  Hardyman 
Childress  v.  Cutter  15, 

V.  Mann 
Childs  V.  McChesney 

V.  Smith 
Chilton  V.  Cabiness 
Chorpenning's  Appeal  469, 

Chretien  v.  Her  Husband 
Christensen  v.  Stumpf 
Chubb  V.  Stretch 
Church  V.  Landors 

V.  Mansfield 
Churchill  v.  Corker 

V.  Dibbin  194, 


462, 

167,  179,  552, 
218, 

421, 


228, 

100, 
579, 


231 


643 

588 
109 

645 
619 
517 
466 
433 
640 
524 
584 
537 
505 
124 
495 
492 
457 
238 
258 

637 
474 
233 
116 
558 
274 
228 
300 
371 
424 
369 
144 
626 
299 

43 
185 
589 
270 
208 
341 
234 
227 
430 
642 
215 
642, 
643 
612 

91 
212 

93 
234 
185 
506 
511 

54 
250 
264 
100 
639 
285 
254 


Cincinnati  v.  Newell  154 
V.  Stone  612 
Cincinnati,  &c.,  R.  R.  Co.  v.  Clark- 
son                                 -  624 
Cipperley  v.  Rhodes  186 
City  of  Chicago  v.  Major  572 
V.  Starr  571,  573 
City  Council  v.  Van  Roven  75 
Glamorgan  v.  Lane  585 
Clanton  v.  Burgess  281 
Clapp  V.  Greene  349 
V.  Houghton  143 
V.  Stoughton  115,  165 
Clarges  v.  Albermarle  174 
Claridge  v.  Crawford  593,  594 
V.  Evelyn  521 
Clark  V.  Bank  of  Missouri  218 
V.  Burgh  142 
V.  Burnside  471,  472 


462 

162,  164,  217,  301,  302 

38 

369 

642 

477 

560 

218 

415,  459,  502 

198 

213 

289 

185,  474,  498 

593 


V.  Casler 

V.  Clark 

V.  Field 

V.  Fitch 

V.  Fry 

V.  Garfield 

V.  Goddard 

V.  Maguire 

V.  Montgomery 

V.  Pister 

V.  Tennison 

V.  Thompson 

V.  Tompkins 

V.  Turner 

V.  Waterman  617 

V.  Watson  595 

V.  Whitaker  494 

Clark's  Appeal  439 

Clarke,  In  re  458 

V.  Clay  497 

V.  Cordis  412,  447 

V.  Darnell  434 

V.  Gilmanton  597 

V.  Jaques  199 

V.  Leslie  552,  555 

V.  Lott  301 

V.  Windham  202 

V.  Wright  388 

V.  Van  Surlay  446 

Claussen  v.  La  Franz  135 

Clawson  v.  Clawson  215 

Clay  V.  Brittingham  487 

V.  Clay  477 

V.  Irvine  160 

Cleaveland  v.  Mayo  362 

Cleaver  v.  Kirk  377 

Cleland  v.  Cleland  134 

Clement  v.  Mattison  30 

Clementstine  v.  Williamson  581 

Clemson  v.  Bush  597 

Clerk  V.  Laurie  225 

Cleveland  v.  Hopkins  421 

Clifford  V.  Burton  100 

V.  Laton  81,  93 


TABLE   OF   CASES   CITED. 


XXXV 


Clifton  V.  Goodbun  387 

V.  Haig  116 

Clinton  v.  Hooper  178 

V.  Kowland  328 

V.  York  369,  370 

Cloud  V.  Hamilton  346,  347,  370 

Clough  V.  Bond  160 

V.  Clough  629 

Clowes  V.  Clowes  37 

V.  Van  Antwerp     469,  500,  513 

Coates  V.  Gerlach  282,  285,  286 

V.  Wilson  549 

Cockayne,  Ex  parte  404 

Cocker  v.  Quayle  224 

Cochran  v.  Van  Surlay  446 

Cochrane,  In  re  61 

Cockrell  v.  Cockrell  431 

Coe's  Trust,  In  re  327,  458 

Coffin  V.  Bramlitt  476 

V.  Dunham  79 

V.  Jones  66 

V.  Morrill  122,  151 

Coggshall  t'.  Tibhetts  185 

Coham  v.  Coham  410 

Cohen  V.  Armstrong  576 

Colburn  v.  Patmore  626 

V.  Woodworth  619,  620 

Colby  V.  Lamson  249 

Colcock  V.  Ferguson  537 

Colcord  V.  Swan  156 

Cole  V.  Cole  29,  339 

V.  Eaton  456,  462 

V.  O'Neill  270 

V.  Pennoyer  585,  588 

V.  Seeley  74 

V.  Sliurtleff  70 

V.  Van  Riper  235 

Coleman  v.  Hallowell  163 

V.  Satterfield  231 

Collins  V.  Brook  695 

V.  Collins  36,  294 

V.  Evans  618 

V.  Hoxie  388 

V.  Mitchell  91 

V.  Price  619 

V.  Vining  460 

Colsten  i;.  Morris  337 

Colton  V.  Goodson  430 

Coltman  v.  Hall  448 

Columbine  v.  Penhall  264 

Colvin  I'.  Currier  214 

V.  Holbrook  628 

Commissioners  v.  Hildebrand  86 

Comm'rs  of  Poor  v.  Gausett  321 

Commonwealth  v.  Addicks  340 

V.  Baird  616 

V.  Briggs  340 

V.  Cox  492,  503 

V.  Fee  384 

V.  Feeney  102 

V.  Fletcher  231 

V.  Gamble  560 

V.  Green  524 


Commonwealth  v.  Hamilton  321 

V.  Hunt  48 

V.  Hutcliinson  527 

V.  Lewis  102 

V.  McAfee  59 

V.  Mead  523,  524 

V.  M'Keagy  343 

V.  Moore  605 

V.  Murray  349 

V.  Phillipsburgh  73 

V.  Khoads  446,  503 

V.  Stump-  42 

V.  Tryon  102 

V.  Van  Lear  605 

Compton  V.  Bearcroft  47,  48 

V.  Collinson  255 

V.  Compton  416 

Congdon  v.  Perry  624 

Conkey  v.  Dickinson  441,  497 

Conklin  v.  Ogboni  582 

V.  Thompson  563 

Conlin  v.  Charlestown  645 

Connolly  v.  Hull  552,  553 

Connor  v.  Berry  215 

Conovar  v.  Cooper  370 

Conrad  v.  Thomo  235 

Conroe  v.  Birdsall  638,  568 

Converse  v.  Converse  286 

Conway  v.  Beazley  48 

V.  Smith  287 

Cook  V.  Baker  262 

V.  Bradley  S66 

V.  Burton  64 

V.  Cook  340 

V.  Toumbs  584 

Cooke  V.  Beale  432 

Cooke's  Case  415 

Coolidge  V.  Parris  104 

Coombs  V.  Janvier  505 

V.  Queen's  Proctor  255 

V.  Read  216 

Coomes  v.  Houghton  G41,  645 

Coon  V.  Cook  442 

Cooney  v.  Woodburn  207 

Cooper  V.  Alger  242 

V.  Hepburn  486 

V.  Hunchin  73 

V.  Lloyd  92 

V.  Maddox  159 

V.  Martin  77,  320,  378 

V.  Phillips  617 

V.  Summers  413 

V.  Sunderland  485 

V.  Thornton  414 

V.  Whitney  185 

V.  Witham  105 

Cooper's  Case  430 

Copp  V.  Copp  408,  429,  432 

Coppedge  v.  Threadgill  134 

Coppin  V. 115 

Corbet  r.  Tottenham  394,  433 

Corbin  v.  American  Mills  612 

Corey  v.  Corey  369,  371 


XXXVl 


TABLE   OF   CASES    CITED. 


Corley  v.  Corley 
V.  Green 
Cornelia  v.  Ellis 
Cornell  v.  Vanartsdalen 
Corning  v.  Fowler 
Corpe  V.  Overton  544, 

Corrie's  Case 
Corrigan  v.  Kiernan  407,  408, 

V.  Union  Sugar  Refinery 
Corj'  v.  Gertcken 
Cosegayne,  Ex  parte 
Coster  0.  Coster 
Costigan    v.  Mohawk  R.  R.  Co. 

Cotliran  v.  Lee  78 

Cotteen  v.  Missing 

Cotter  V.  Layer 

Cotterell  v.  Homer 

Cottle  V.  Tripp 

Cotton  V.  Wood 

Cottrell's  Estate,  In  re  824, 

Couglilin  *'.  Ryan 

Countess  Da  Cunlia,  Goods  of 

Countess  of  Portland  v.  Progers 

Countess  of  Portsmouth  v.  Earl  of 

Portsmouth 
Countess  of  Strathmore  v.  Bowes 
Counts  V.  Bates 
Coverdale  v.  Eastwood 
Covington  r.  Leak 
Cowan  V.  Anderson 
Cowden  v.  Wright  353, 

Cowell  V.  Daggett 
Cowles  V.  Morgan 
Covviey  v.  Robertson 
Cowls  V.  Cowls  326, 

Cowton  V.  Wickersham 
Cox  V.  Combs 


129 
167 
7'J 
66 
166 
556 
526 

,423 
637 
516 
132 
132 

620, 
623 

i,  85 
284 
251 
264 
282 
285 
326 
295 
445 
255 

35 

269 

536 

207 

477 

462 

361 

350 

233 

72 

429 

153 

35 

98 

93 


Hoffman 

V.  Kitchin 

V.  Midland    Counties    R.  R. 

Co.  635 

V.  Morrow  161 

V.  Muncey  605 

Cozine  v.  Home  418 

Cozzens  v.  Whitney  230 

Craft  V.  Rolland  230 

Craig  V.  Brendel  67 

Grain  v.  Barnes  497 

Cramer  v.  Reford  112 

Crandall  v.  Slaid  596 

Crane  v.  Brice  113 

V.  Crane  310 

V.  Kelley  232 

Cranston  v.  Sprague  490 

Cranz  v.  Kroger  349 

Crapster  v.  Griffith  519 

Crawford  i'.  Verry  167 

Cray  v.  Mansfield  513 

Craycroft  v.  Morehead  68 

Credle  v.  Carrawan  264 

Crehore  v.  Creliore  37 
Crensliaw  v.  Crenshaw               462,  497 


Cresinger  v.  Welch  579, 

Creuze  v.  Hunter 
Cricket  v.  Dolby 
Crittenden  v.  Alexander 
Crocker  v.  Molyneux 
Crockett  v.  Calvert 

V.  Crockett 
Ci-oft  V.  Alison 
V.  Terrell 
Crofton  V.  Ormsby 
Crofts  V.  Middleton 

V.  Waterhouse 
Cromwell  v.  Benjamin 
Cronise  v.  Clark 
Crook  V.  Henry 
V.  Hill 
V.  Turpin 
Cropsey  v.  McKinney 
Crosbie  v.  Hurley 
Crosby  v.  Crosby 
Cross  V.  Guthery 

V.  Noble 
Crostwaiglit  v.  Hutchinson 
Crouch  V.  Martin 
Crowell's  Appeal 
Croxton  v.  May 
Crozier  v.  Bryant 
Cruger  v.  Douglas 
V.  Hey  ward 
Crumb,  Ex  parte 
Crump  V.  Gerock 
V.  McKay 
V.  Morgan 
Crutchfield's  Case  416 

Crymes  v.  Day 
Cuckson  V.  Stones 
V.  Winter 
Culberson  v.  Culberson 
Cummings  v.  Miller 
V.  Powell 
Cummins  v.  Cummins 

V.  Sharpe 
Cunningham  v.  Cunningham 
V.  Fontaine 
V.  Pool 
V.  Reardon 
Curren  v.  Driver 
Currie  v.  TurnbuU 
Curry  v.  Bott 

V.  Fulkinson 
V.  Shrader 
Curtin  v.  Patton 
Curtis  V.  Bailey 
V.  Curtis 
V.  En  gel 
V.  Fox 
V.  Hobart 
V.  Ripiion 
Curtton  V.  Moore 
Gushing  v.  Cushing 
Cujisons  V.  Skinner 
Cutler  V.  Butler 
V.  Cutler 


586,  591 
335,  337 
387 
127 
609 
639 
185 
638 
431 
274 
225 
637 
85,  327 
537 
66 
387 
129,  443 
112,  246 
521 
441,  500 
107 
152 
266 
123 
498 
133 
108 
286 
322 
428,  429 
496 
107 
31 
,  430,  467 
542 
628 
521 
274 
236 
540,  546 
457,  500 
230 
311,  498 
215 
500 
167 
185 
42 
214 
116,  161 
215 
537 
498,  503 
378,  605 
205 
165 
472 
410 
70 
377 
615 
258 
55 


TABLE   OF   CASES   CITED. 


XXXVll 


Cutter  V.  Powell  619,  620,  622,  623 

V.  Waddiiigliam  212 

Cutting  V.  Seabury  354 


D. 


392, 


359, 


Dagley  v.  Tolferry 
Dailey  v.  Dailey 
Dain  v.  Wyckoff 
Dalbiac  v.  Dalbiac 
Daley  W.Norwich  &  Worcester  R.R. 
Co.  571, 

Dallam  v.  Walpole 
Dallas  V.  Heard 
Dalrymple  v.  Dalrymple  35,  40,  41, 

Dalton,  In  re 
V.  Gib 
V.  State 
Damon  v.  Osborn 
Dana  ".  Coombs  584, 

V.  Stearns 
Daniel  v.  Adams 
V.  Newton 
Dankel  v.  Hunter 
Dannelli  v.  Dannelli 
Darby  v.  Calligan 
Darkin  v.  Darkin 

Darley  v.  Darley  190, 

Darling  v.  Noyes 
Darlington  v.  Pulteney 
Davenport  v.  Bishop 

w.  Davenport 
Davey  v.  Turner 
Davidson  v.  Graves 

V.  McCandlish 
V.  Young 
Davies  v.  Davies  530, 

V.  Locket 
V.  Solomon 
V.  Turton 
V.  Williams 
Davis  V.  Baugh 
V.  Cain 

V.  Caldwell  545,  550, 

V.  Davis 

V.  Detroit,  &c.,  R.  R.  Co. 
V.  Dickson 
?j.  Dinwoody 

V.  Goodenow  373, 

V.  Harkness 
V.  Herrick 
V.  Jones 
V.  McDonald 
V.  Meredith 
V.  Prout 
V.  Roberts 
Davis's  Appeal  113,  151, 

Davison,  Matter  of 

V.  Atkinson  188, 

(;.  Johonnot  421, 

Dawes  v.  Howard 


414 
340 

360 
227 

572 
228 
228 
42, 

43 
530 
554 
406 
633 
589 
581 
151 
419 
152 
310 
238 
219 
322 
331 
147 
264 
237 
153 
265 
230 
585 
620 
F594 
107 
501 
357 
526 
203 
555 
151 
642 
502 

64 
378 
457 
282 
151 
185 
633 
190 
457 
467 
327 
199 
446 
325 


Dawson,  Ex  parte  446 

V.  Dawson         366,  387 

V.  Jay  453 

u.  Massey         608,515 

Day  V.  Burnham  84 

V.  Croft  191 

V.  Everett  345 

V.  jNIessick  70 

r.  Padrone  115 

Dayton  v.  Fisher  213 

Deadrich  v.  Armour  165 

Dean  v.  Bailey  232 

V.  Brown  199 

V.  Phillips  155 

V.  Richmond  301 

V.  Shelly  156 

V.  State  306 

Deane  v.  Annis  330 

V.  Aveling  31 

Deare  v.  Soutten  79,  94 

Dearin  v.  Pitzpatrick  129 

Deason  v.  Boyd  579 

De  Barranti  v.  Gott  265 

De  Bathe  v.  Lord  Fingal  40? 

Dedham  v.  Natick  325 

Deerfield  v.  Delano  640 

Deerl}'  v.  Mazarine  255 

Deery  v.  Cray  153 

Dcford  V.  Mercer  510 

Degg  V.  Midland  R.  R.  Co.  644 

Delafield  v.  Tanner  597 

Delagarde  ;•.  Lempriere  129,  138 

Delano  v.  Blake  579 

De  Manneville  v.  De  Manneville      336, 

396 
154,  155,  228 
409 
285 
631 
155 
282 
108 
43,  65 
64 
351,  352 
65 


Demarest  v.  Wynkoop 
De  Mazar  v.  Pybus 
Deming  v.  Williams 
Dcmyer  v.  Souzer 
Den  V.  Demarest 

V.  York 
Dengate  v  Gardiner 
Denison  v.  Denison 
Denn  v.  White 
Dennis  v.  Clark 

V.  Crittenden 
Dennison  v.  Page  306 

Dennvs  v.  Sargeant  78 

Dennysville  v.  Trescott  370 

Denson  v.  Patton  218 

Dent  V.  Bennett  515 

Derbishii-e  v.  Home  199 

Dering  v.  Kynaston  274 

Dermott  v.  Jones  623 

Deroclier  v.  Continental  Mills  562 

De  Roo  V.  Foster  569 

Descelles  v.  Kadnius  90 

Devanbagh  v.  Devanbagh  31 

De  Vries  v.  Conklin  232 

De  Witte  v.  Palin  480 

Dexter  v.  Blanchard  331 

Diaper  r.  Anderson  496 

Dibble  v.  Dibble  410,  424 


XXXVlll 


TABLE  OF   CASES  CITED. 


Dibble  v.  Jones  570 

Dickens  v.  N.  Y.  Central  K.  E.  Co.    110 

Dickenson  v.  Blisset  30 

Dickerman  v.  Graves  64 

Dickinson  v.  Swatman  259 

V.  Winchester  849 

Dicks  V.  Grissom  370 

Dickson  v.  Dickson  49 

V.  IMiller  205,  206,  229 

Dietterich  v.  Heft  469 

Digby  V.  Irvine  223 

Dilk  i\  Keighley  544 

Dillage  v.  Parks  285 

Dillaye  v.  Greenough  266,  274 

Dillon  V.  Lady  Mount  Cashell  433 

Dinsmore  v.  Biggert  206 

Dixon  V.  Bell  631 

r.  Dixon  199,120 

V.  Hamond  626 

V.  Harrison  148 

V.  Homer  500 

V.  Hurrell  84,  94,  96 

V.  Olmius              •  190 

Doane  v.  Covel  605 

Dobson  V.  Butler  300 

V.  Dobson  170 

Docker  v.  Somes  511 

Dodd  V.  Acklom  100 

Dodge  V.  Favor  370 

V.  Hollinshead  235 

Dodgson  V.  Bell  117 

Doey.  Ford  134 

V.  Himelick  627 

V.  Manning  281 

V.  Eusham  281,  284 

V.  Weller  148 

V.  Wilkins  139 

Doe  d.  Birtwhistle  v.  Vardill    311,  313 

Doker  v.  Hasler  64 

Dold  V.  Geiger  124 

Dominick  v.  Michael    261,  535,  536,  587 

Donahoe  v.  Eichards  355 

Donaldson  v.  Donaldson  284 

Donne  v.  Hart  140,  219 

Donnington  v.  Mitchell  '  160 

Donovan  v.  Needham  327 

Doolan  v.  Blake  198 

Dorman  v.  Ogboume  412 

Dorr,  Petitioner  467 

Dorrell  v.  Hastings  549 

Doty  V.  Mitchell  227 

Douglas  V.  Watson  590 

Dover  v.  McMurphy  321 

Dow  V.  Clark  595 

V.  Gould  68,  285 

V.  Jewell  154 

Do  we  V.  Smith  95 

Dowling,  In  re         .  152 

V.  Maguire  225 

Downin  v.  Spreoher  487 

Downing  v.  Sevmour  141 

Downs  V.  New  York  Central  B.  E. 

Co-  571,  572 


Doyley  v.  White 
Drake  v.  Eamsay 
Drane  v.  Bayliss 
Draper  v.  Jackson 
V.  Joinville 
Draper's  Case 
Dresel  v.  Jordan 
Drew  V.  Long 

V.  Peckwell 


73 
585 
441 
118 
478 
137 
100 
157 
605 


V.  Sixth  Avenue  E.  E.  Co.  360, 

641 

Driggs  V.  Abbott  163 

Driver  v.  Driver  559 

Druce  v.  Dennison  123,  134 

Drue  V.  Thorn  72 

Drury  v.  Conner  471 

V.  Drury  629 

V.  Scott  194 

Drybutter  v.  Bartholomews  149 

Duberly  v.  Gunning  109 

Dublin   &  Wicklow  E.  E.   Co.  v. 

Black  583,  597 
Dubois  V.  Jackson  216 
Dubose  V.  Wlieddon  538,  557 
Du  Boulay  v.  Du  Boulay  386 
Duckworth  v.  Johnson  352 
Duel  V.  Harding  681 
Duffey  V.  Shockey  610 
Dutield  V.  Cross  846 
Duhring  v.  Duhring  185 
Duke  of  Beaufort  v.  Berty  335,  429 
Duke  of  Hamilton  v.  Lord  Mohun    513 
Dumain  v.  Gwynne  343 
Dumaresly  v.  Fishly  40,  42 
Dumond  v.  Magee  129 
Duncan  v.  Crook  403 
V.  Duncan  43 
V.  Eoselle  243 
Duncan's  Appeal  270 
Dunham  v.  Hatcher  408 
V.  Osborne  185 
Dunn  V.  Bank  of  Mobile  203 
V.  Dunn  259 
V.  Lancaster  179 
V.  Sargent                  116,  122,  217 
Dunnahoe  v.  Williams  100 
Dunning  v.  Pike  288 
Dunsford  v.  Eidgwick  608 
Duntze  v.  Levett  23 
Durant  v.  Eitchie  287 
Durell  V.  Hay  ward  167 
Duren  v.  Getchell  288 
Duress  v.  Horneffer  245 
Durgin  v.  Munson  642 
Durnford  v.  Lane  529 
Durr  V.  Bowyer  129 
Durrant  v.  Friend  888 
Dutcher  v.  Hill  485 
Dutton  V.  Dutton  294 
Duvall  V.  Farmers'  Bank  of  Mary- 
land 129 
D3'ce  Sombre's  Case  424 
Dye  V.  Kerr  372 


TABLE   OF  CASES   CITED. 


XXXIX 


Dyer  v.  Cornell 

481 

Elliott  V.  Bentley 

243 

V.  East 

81 

V.  Cordell 

125,  132 

Dyer's  Case 

410, 

424 

V.  Horn 

559 

Dygert  v.  Reraerschneider 

282 

Elhs  V.  Ellis 

V.  Kenyon 
Ellison,  Matter  of 
V.  Ellison 

555,  556 
228 

487 
284 

E. 

V.  Elwin 
Ellsworth  V.  Hinds 

124 
121,  151 

E.  B.  V.  E.  C.  B. 

410 

Elrod  V.  Lancaster 

511 

Eager  v.  Grimwood           355, 

356, 

359, 

V.  Myers 

552,  553 

360 

Elton  V.  Sliephard 

193 

Eagle  Fire  Ins.  Co.  v.  Lent 

539 

Elwell  V.  Martin 

666,  567 

Eames  v.  Sweetser 

81 

Elzey  V.  Elzey 

30 

Earl  V.  Dresser 

445 

Emerick  v.  Coakley 

289 

V.  Ferris                      198 

224, 

225 

Emerson,  Appellant 

500 

Earl  of  Buckinghamshire  v.  D 

rury 

169 

V.  Blounden 

100 

Earl  of  Durham  v.  Wharton 

273 

V.  Clayton 

238 

Earl  of  Ilchester's  Case 

394 

450 

V.  Harris 

185 

Earl  of  Salisbury  v.  Newton 

130 

V.  Spicer 

399 

Earl  of  Shaftesbury  v.  Lady 

Han- 

Emery  v.  Emery 

90 

nam 

394 

V.  Gowen 

357 

Earl  of  Thomond  v.  Earl  of  S 

affolk   71 

V.  Kempton 

348 

Earle  v.  Cram 

443 

V.  Neighbour 

95,  258 

V.  Dawes 

381 

V.  Vroman 

485 

V.  Hall 

641 

V.  Ware 

151,  152 

V.  Peele 

555 

Emmet  v.  Norton 

81,  85,  95,  98 

V.  Reed 

557 

Emmons  v.  Murray 

546,  586 

Eaton  V.  George 

235 

Enders  v.  Beck 

104 

V.  Hill 

566 

England  v.  Downes 

269,  271 

V.  Nason 

154 

228 

English  V.  Cropper 

66 

V.  Tillinghast 

265 

V.  Foxall 

263 

Eastern   Counties   R.  R.    Co. 

V. 

V.  Wilson 

621,  623,  626 

Broom 

640 

Errat  v.  Barlow 

327 

Eckert  v.  Reuter 

237 

Ervin  v.  Brady 

185 

Eckford  v.  De  Kay 

510 

Espey  V.  Lake 

443,  516 

Ede  V.  Knowles 

278 

Essex  V.  Atkins 

155 

Edelen  v.  Edelen 

236 

V.  Essex 

81 

Edgarton  v.  Wolf 

591 

Esslinger  v.  Huebner 

234 

Edgerly  v.  Shaw 

580 

Estabrook  i-.  Earle 

237 

V.  Whalan 

94 

231 

Estill  I'.  Rogers 

43 

Edgerton  v.  Jones 

234 

Etherington  v.  Parrott 

82,  88,  91, 

Edmond's  Appeal 

59 

93 

Edmondson  v.  Machell 

359 

Etna,  The 

345,  370 

Edrington  v.  Harper 

143 

Evans  v.  Bennett 

623 

V.  Leach 

623 

V.  Chester 

73 

Edward  v.  Freeman 

376 

V.  Davies 

387 

Edwards,  Ex  parte 

409 

V.  Secrest 

118 

V.  Davis                329 

,  365 

,  366 

V.  Walton 

357,  358 

V.  Freeman 

376 

Evansville  R.  R.  Co.  v. 

Baum           641 

V.  Jones 

284 

Evarts  v.  Nason 

499,  500 

V.  Stevens 

248 

Evelyn  v.  Templar 

281 

V.  Towels 

91 

Everett  v.  Sherfey 

347,  356,  370 

Eichelberger's  Appeal 

462 

Everitt  v.  Everitt 

274 

Eitel  V.  Walter 

330 

EversoU  v.  King 

110 

Elder  (.'.  Hemis 

641 

Everson  v.  Carpenter 

638,  584 

Elderton  v.  Emmens 

G18 

Everts  v.  Everts 

514 

Eldredge  v.  Forrestal 

185 

Evertson  v.  Evertson 

608 

Eldridge  v.  Lippincott 

406 

Ewers  r.  Hutton 

95 

V.  Preble 

21^ 

,216 

Ewing  V.  Smith 

227 

Elgin's  Case 

433 

Eyre  v.  Countess  of  SI 

aftesbury     425, 

Elijah  V.  Taylor 

232 

437,  450,  517 

Elliot  V.  ColUer 

162 

Ezelle  V.  Parker 

235 

xl 


TABLE   OF   CASES   CITED. 


Fairlie  v.  Hastings 
Falk  V.  Turner 

Falmouth  Bridge  Co.  i'.  Tibbetts 
Fane,  Ex  parte 
Fanning  v.  Chadwiek 
Farmers'  Bank  v.  Long 
Farmington  v.  Jones 
Farnsvvorth  v.  Oliphant 

V.  Richardson 
Farr  p.  Sherman 

V.  Sumner 
Farrance  v.  Viley 
Farrell  v.  Ledwell 

V.  Patterson  214, 

Farrer  v.  Bessey 

IK  Chirk 
Farrinston  v.  Parker 
Farweil   v.   Boston  &  Worcester 

R.  R.  Co. 
Faulkner  v.  Davis 

V.  Erie  R.  R.  Co.         643, 
Favorite  v.  Booher 
Fawcet  v.  Beavres 
Fawcett  v.  Cash 
Fa w  try  v.  Fa w  try 
Fay  V.  Hurd  429, 

V.  Taylor 
Feigley  v.  Feigley 
Felch  V.  Allen 
Felker  v.  Emerson 
Feller  v.  Alden 
Fellows  V.  Tann 
Feltliam  v.  England 
Felton  V.  Long  507, 

V.  Reid 
Fenton  v.  Clark 
Feran  v.  Rudolphsen 
Ferguson  v.  Bell  539, 

V.  Tweedy 
Fernslee  c  Moyer 
Fettiplace  v.  Gorges  219,  253, 

Fewell  V.  Collins 

Fewings  v.  Tisdal  607,  619, 

Fidler  v.  Higgins 
Field  V.  Evans 
V.  Goklsby 
V.  Lucas 
V.  Moore 
V.  SchiefFelin 
V.  Sowle 
V.  Torrey 
Fielder  v.  Hanyer 
Fielding's  Case 
Fields  V.  Law 
Filleul  V.  Armstrong 
Filliter  v.  Phippard 
Filmer  v.  Lynn  81, 

Finch  V.  Finch 
V.  Gore 
Finley  v.  Jowle 


Finn  v.  Rose 

215 

Finney  v.  State 

419 

Fire  Ins.  Co.  v.  Bay 

228 

635 

Firth  V.  Denny 

171 

274 

Fish  v.  Miller 

516 

155 

Fisher  v.  Fisher 

373 

252 

V.  Grimes 

184 

506 

V.  Kimball 

258 

282 

V.  Lunger 

605 

321 

V.  Mowbray 

537 

498 

Fisk  V.  Cushman 

218 

343 

V.  Lincoln 

457 

235 

Fitch  V.  Peckham 

372 

542 

V.  Hill 

65 

458 

Fitler  v.  Filler 

322 

67 

Fitts  V.  Hall 

566,  567 

216 

Fitzgerald  v.  Fitzgerald 

275 

72 

Fitzgibbon  v.  Blake 

199 

418 

V.  Lake 

484,  485 

223 

Fitzhue  v  Dennington 

519 

Fitzmaurice  v.  Sadlier 

282 

642 

Fitzpatrick  v.  Fitzpatrick 

33,46 

481 

Flaherty  v.  Sutton 

185 

645 

Flanagan  v.  Bishop  Wearmouth         90 

502 

V.  Flanagan 

151 

631 

Fleet  V.  Perrins 

122,  163,  227 

607 

Flenner  v.  Flenner 

266,  275 

168 

Fletcher  v.  Ashley 

270 

434 

V.  Fletcher 

466,  477 

493 

V.  People 

333 

285 

V.  Walker 

474 

642 

Flint  V.  Gloucester  Gas-Li 

ghtCo.     645 

100 

Floyd  V.  Johnson 

510 

232 

Flynn  v.  Beebe 

643 

202 

FoUit  V.  Koetzow 

385 

645 

Foltz's  Appeal 

496 

514 

Fonda  v.  Van  Home 

374,  392,  538 

235 

Foote  V.  Bryant 

282 

623 

V.  Murray 

458 

248 

Ford  V.  Miller 

456 

586 

V.  Monroe 

360,  361 

164 

V.  Phillips 

581 

454 

V.  Stuart 

263,  264 

254 

V.  Teal 

153,  215 

106 

Forbes  v.  Moore 

16 

620 

Foreman  v.  Foreman 

590 

481 

Forman  v.  Marsh 

481,  590 

198 

Forney  v.  Hallaker 

109 

485 

Fornstill  v.  Murray 

48 

462 

Forse  v.  Hembling's  Case 

251 

529 

Forster  v.  Fuller 

464 

471 

Forsyth  v.  Hastings 

580,  605 

221 

Foss  V.  Foss 

37 

506 

Foster  v.  Alston 

340,  451 

162 

V.  Bisland 

503 

37 

V.  Essex  Bank 

362,  638 

406 

V.  Mott 

416 

614 

Foteaux  v.  Lepage      441 

457,  478,  502 

637 

Foulks  V.  Rhea 

185 

,100 

Fountain  v.  Anderson 

466 

265 

V.  Boodle 

625 

605 

Fowle  V.  Tidd 

242 

593 

1  Fowler  v.  Colt 

378 

TABLE^  OF  CASES   CITED. 


Xli 


Eowler  v.  Frisbie  107 

V.  Rice  213,  214,  216,  233 

V.  Seaman  237 

V.  Shearer  155 

V.  Sir  John  Dineley  94 

V.  Trebein  288 

Fowlkes  V.  Baker  329 

Fox  V.  Doherty  179 

V.  Jones  232 

V.  Minor  422,  462 

Foxwortli  V.  Magee  234 

Fraim  v.  Frederick  65 

Frampton  v.  Frampton  293 

Francis  v.  Felniet  561,  562 

Frank  v.  New  Orleans,  &c.,  R.  R. 

Co.  352 

Frankfort  v.  New  Vineyard  368 

Franklin  v.  Creyon  202 

V,  Mooney  560 

V.   South-Eastern   R.  R. 

Co.  353,  360 

Franks,  Ex piuln  255 

V.  Martin  268 

Frary  v.  Booth  295 

Eraser,  Goods  of  261 

Frazer  v.  Freeman  640 

Frazier  v.  Gelston  228 

V.  Massey  535 

V.  Rowan  562 

V.  Steenrod  486 

Frederick  v.  Coxwell  151 

V.  Moore  492 

Freelaconey  v.  Coleman  109 

Freeman  v.  Bridger  551,  553 

V.  Fairlee  132 

V.  Freeman  202 

V.  Hartman  269 

V.  Hill  266 

Freestone  v.  Butcher  81,  84 

French  v.  Currier  476,  478 

V.  Davidson  460 

V.  French  278 

V.  Mehan  288 

V.  Thompson  466 

Freto  V.  Brown  321,  378 

Fridge  v.  State  513,  537 

Friend  v.  Thompson  57,  58,  321 

Friend's  Case  617 

Frierson  v.  Frierson  285 

V.  Travis  596 

Frost  V.  Willis  93 

V.  Winston  478 

Fry  V.  Derstler  109 

V.  Fry  133,  204 

Fugate  V.  Pierce  67 

Fulgham  v.  State  59 

Fuller  V.  Naugatuck  R.  R.  Co.  110, 165 

V.  Wing  469,  494 

Fulton  V.  Smith  377 

Fuqua  v.  Hunt  462 

Furillio  v.  Crovvther  385 

Furlong  v.  Bartlett  591 

Furlong  v.  Hysom  84 


Furman  v.  Coe 
Fuss  V.  Fuss 
Fussell  V.  Dowding 
Fynn,  In  re 


G. 


470 

287 
300 
337 


G.  V.  G. 

31,32 

Gage  V.  Dauchy 

232 

t'.  Reed 

72,  102 

Galley  v.  Crane 

581 

Gaines  v.  Poor 

218 

V.  Spann 

407,  408 

Gainor  v.  Gainor 

271 

Galbraith  v.  Black 

374 

Gale  V.  Parrot 

845,  369 

V.  Wells 

470,  516 

Gallego  V.  Gallego 

116,  122 

Galusha  v.  Hitchcock 

100,  154 

Galway  v.  Fullerton 

234 

Gamber  v.  Gamber 

214 

Gambs  v.  Covenant,  &c., 

Life  Ins. 

Co. 

289 

Gandall  v.  Pontigny 

619 

Gannard  v.  Eslava 

285 

Gannaway  v.  Tapley 

508 

Gardiner  v.  Holt 

597 

Gardner  v.  Baker 

282 

V.  Gardner 

228 

V.  Heyer 

388 

V.  Marshall 

132 

Garin  v.  Burton 

638 

Garlick  v.  Strong 

282 

Garner  v.  Board 

562 

Garrard  v.  Garrard 

274 

Garrett  v.  Dabney 

258 

Garth  v.  Howard 

685 

Garthshore  v.  Chalie 

170 

Garver  v.  Miller 

294 

Garvin  v.  Ingram 

287 

V.  Williams 

515 

Gary  v.  Cannon 

476 

V.  James 

370 

Gaston  v.  Frankum 

221 

Gaters  i\  Maddeley 

115, 118 

Gates  V.  Brower 

100 

u.  Davenport 

562,  623 

Gaudet  ik  Gaudet 

438 

Gault  i:  Saffin 

214 

Gazynski  r.  Colburn 

110 

Gedder,  Ex  parte 

129 

Gee  V.  Gee 

205 

V.  Lewis 

238 

Gelston  v.  Frazier 

228 

Genet  v.  Tallmadge 

462 

Genner  v.  Walker 

649,  550 

George  v.  Bussing 

253 

V.  Goldsby 

126 

V.  Ransom 

234 

V.  Spencer 

285 

V.  Thomas 

688 

V.  Van  Horn 

359 

xlii 


TABLE   OF   CASES    CITED. 


Georgia  R.R.  Co.  v.  Wy 
Getts,  Petition  of 
Gliolston  v.  Gholston 
Giacometti  v.  Prodgers 
Gibbes  v.  Cobb 
Gibbins  v.  Eyden 
Gibbs  V.  Harding 

V.  Merrill 
Gibson  v.  Walker 
Gilbert  v.  Guptill 

V.  Mayford 

V.  McEachen 

V.  Plant 

V.  Schwenk 

V.  Wetlierell 
Gilchrist  v.  Cater 
Gilker  v.  Brown 
Gill  V.  Read 

V.  Shelley 
Gillespie  v.  Worford 
Gillet  V.  Camp 

V.  Stanley 
Gilliat  V.  GiUiat 
Gillis  V.  Brown 
Gilman  v.  Andrus 

V.  D wight 

V.  Eastern  R.  R. 
Gilniartin  i'.  New  York 
Gilmore  v.  Rodgers 
Gilson  V.  Spear 

V.  Zimmerman 
Ginochio  v.  Porcella 
Girand  v.  Richmond 
Girty  v.  Logan 
Gishwiler  v.  Dodez 
Given  v.  Charron 

V.  Marr 
Glaister  v.  Hewer 
Glascott  V.  Warner 
Ghiss  V.  Warwick 
Glassey  v.  Hestonville, 

Co. 
Gleason  v.  Gleason 
Glen,  Ex  pm-te 
Glidden  v.  Taylor 

V.  Unity 
Gloucester  v.  Page 
Glover,  Ex  parte 

V.  Alcott 

V.  Glover 

V.  Ott 

V.  Proprietors 
Lane 
Godard  v.  Wagner 
Goddard  v.  Snow 
Godfrey  v.  Brooks 
Goldbeck  r.  Goldbeck 
Goldsmith  v.  Russell 
Goleman  v.  Turner 
Gonsolis  V.  Gearhart 
Good  V.  Harris 
Goode  )'.  Harrison 
Goodenough,  In  re 


m  110 

498 
59 
135 
275 
164 
293 
570 
228 
477,  497,  507 
155 
457 

100,  230 

438,  439 
376 
192 
521 
92,  322 
887 
154 

116,  378 
539 

395,  407 
184 


Co. 


79,85 
610 
643 
637 
485 
547 
288 
87,  175,  180 
609 
598 
339 
619,  623 
300 
129 
411 
230 
&c.,  R.  R. 

353,  361 

55 

29 

232 

605 

416 

337 

214,  243,  246 

470 

545 

of     Drury 

112 

324 

269 

84,  100,  247 

42 

264,  277 

463 

613 

202,  203,  207 

544,  577,  583 

342,  343 


Goodhue  v.  Dix  647 

Goodman  v.  Goodman  313 

V.  Kennell  638 

V.  Pocock  619,  620 

Goodrich  v.  Bryant  294 

V.  Goodrich  341 

V.  Tracy  100 

Goodriglit  v.  Straphan  148 

Goodrum  v.  Goodrum  218 
Goodsell  V.  Myers               538,  581,  590 

Goodson  V.  Goodson  514 

Goodwin  v.  Kelly  98 

V.  Moore  593 

V.  Thompson  33,  355 

Goodyear  v.  Rumbaugh  214,  217 

Gordon  v.  Dix  366 

V.  Gordon  .387 

V.  Haywood  153 

V.  Potter  327,  329 

V.  Rolt  640 

Gore  V.  Gibson  30 

V.  Knight  220 

Gornall's  Case  418 

Goshen  v.  Richmond  31,  47 

Goss  V.  Cahill  231 

Gould  V.  Carlton  112 

V.  Webster  144 

Goulding  v.  Davidson  75,  235 
Gove  V.  Farmers',  &c.,  Ins.  Co.         104 

Govier  v.  Hancock  92 

Grace  v.  Hale  546,  549 

Graham,  Goods  of  259,  261 

V.  Bennett  310,  311 

V.  Davidson  440 

V.  Dickinson  151 

V.  Graham  202 

V.  Houghtalin  399 

V.  Londonderry  173,  174, 
175 

Grant  v.  Whitaker  429 

Grantman  v.  Thrall  595 

Grapengether  v.  Fejervary  230 

Grattan  v.  Grattan  377 

Gray  v.  Crook  201 

V.  Dowman  225 

V.  Durland  359 

V.  Fox  476 

V.  Otis  98 

V.  Thacker  72,  102 

Greedy  i'.  Lavender  '  133 

Green,  Ex  parte  327 

V.  Greenback  513.5 

V.  Hudson  R.  R.  Co.  109 

.  V.  Johnson  494 

V.  Macnamara  641 

V.  New  River  Co.  626 

V.  Otte  132 

V.  Pallas  247 

V.  Scranage  228 

V.  Sperry  lOO 

Greenfield  Bank  v.  Crafts  367 

Greening  v.  Hall  473 

Greenly  v.  Daniels  490 


TABLE   OF    CASES   CITED. 


xliii 


Greenwell  v.  Greenwell 

323 

Hall  V.  Lay 

415 

Greenwood  v.  Greenwood 

357 

358 

V.  Simmons 

586 

Gre^g  V.  Gregg 

497 

,498 

V.  Storer 

417 

Gregory  v.  Piper 

640 

V.  Waterhouse 

254 

Gridley  v.  Watson 

282 

V.  Weir 

79 

V.  Wynant 

154 

V.  Young 

119 

Griffin  V.  Banks 

294 

Hall's  Estate,  In  re 

185 

V.  Brown 

65 

Hallenbeck  v.  Berkshire  R.  R.  Co. 

110 

V.  Reynolds 

104 

Ham  V.  Boody 

100 

V.  Taylor 

152 

V.  Ham 

410 

Griffls  V.  Younger 

588 

Hamaker  v.  Hamaker 

31 

Griffith  V.  Griffith 

201 

202 

Hamersley  v.  Smith 

207 

V.  Parks 

491 

Hamilton  v.  Bishop     201, 

202,  203 

204 

V.  Schwenderman 

539 

V.  Douglas 

249 

Griffiths  V.  Teetgen 

357 

V.  Hamilton 

42 

Grigsby  v.  Breckenridge 

176 

V.  Hector 

293 

Grimke  v.  Grimke 

253 

V.  Moore 

430 

Grindell  v.  Godniond 

7 

9,  88 

Hamley  v.  Gilbert 

325 

Grinnell  v.  Wells         351,  352 

355 

356 

Hamlin  v.  Atkinson 

514 

Grist  V.  Forehand 

445 

i\  Bridge 

72 

Griswold  v.  Penniman 

116 

V.  Jones 

150 

Gronfier  ;;.  Puyniirol 

421 

V.  Stevenson 

519 

Gross  V.  Reddy 

214 

Hammer  r.  Pierce 

353 

Grove  v.  Xevill 

567 

Hammersley  v.  De  Biel 

266 

267 

Grubb's  Appeal 

312 

Hammond  v.  Corbett 

215 

349 

Grute  V.  Locroft 

139 

140 

Hamner  r.  Mason 

492 

Guernsey,  Ex  parte 

474 

484 

Hampden,  Case  ot 

395 

Guild  V.  Cranston 

695 

Hampstead  v.  Plaistow 

38 

V.  Guild 

130 

Hampton,  Case  of 

469 

Gulick  V.  Grover 

100 

V.  State 

65 

Gunn  V.  Samuel 

230 

Hamrico  v.  Laird 

274 

Gunter  v.  Astor 

360 

Hanchett  v.  Briscoe 

223 

V.  Williams 

235 

Hancock  v.  Merrick 

90 

322 

Gunther  v.  State 

442 

V.  Peaty 

29 

Gurley  v.  Gurley 

168 

Hands  v.  Slaney 

523 

549 

Guthrie  v.  Morris 

557 

Handy  v.  Cobb 

238 

•Guttman  v.  Scannell 

250 

Hanford  v.  Bockee 

166 

234 

Guy  V.  Du  Uprey 

473 

Hanks  v.  Deal 

574 

Gwaltney  v.  Cannon 

456 

Hanly  v.  Downing 

230 

Gwin  V.  Vanzant 

431 

Hannen  v.  Ewalt 

Hanson  v.  Miller 

V.  Millett 

471 
122 
214 

H. 

Hantz  V.  Sealy 
Harbman  v.  Kendall 

42 

589 

Haase  v.  Koerschild 

324 

Hardenburgh  v.  Lakin 

154 

Haig  V.  Swiney 

193 

Hardie  v.  Grant 

92 

Haine  v.  Tarrant 

557 

Harding  v.  Harding 

341 

Haines  v.  Corliss 

73 

V.  Earned       467, 

471,  477 

483 

V.  Haines 

214 

374 

Hardinge,  Goods  of 

135 

V.  Oatman 

595 

Ilardwick  v.  Paulet 

372 

Hair  v.  Avery 

151 

Hardy  v.  Boaz 

217 

V.  Hair 

55 

t'.  Waters 

535,  541 

543 

Halt  V.  Houle 

155 

Harford  v.  Morris 

35,  36,  47 

Hale  V.  Plummer 

282 

Hargrave  v.  Ilargravo 

306 

308 

Haley  v.  Bannister 

326 

Hargrove  v.  Webb 

457 

Hall  V.  Cone 

513 

Harkins  v.  Coalter 

202 

203 

V.  Creswell 

216 

Ilarland's  Case 

322 

500 

V.  Eaton 

73 

Harlow  v.  Ilumiston 

637 

642 

V.  Gerrish 

581 

Harmer  v.  Cornelius 

623 

V.  Hall    92,  130,  318,  371, 

373 

460 

V.  Killing 

590 

V.  Hardy 

152 

Harnett  v.  ^M'Dougall 

198 

V.  Hollander         351,  352, 

355, 

631 

Harney  v.  Owen 

561 

V.  Jones 

439  1 

Ilarover  v.  Cornelius 

614 

xliv 


TABLE   OF  CASES   CITED. 


Harper  v.  Archer 
V.  Gilbert 
V.  Lemon 
V.  Luff  kin 
V.  Scott 
Harring  v.  Coles 
Harris  v.  Butler 
V.  Currier 
V.  Harris 
V.  Hicks 
V.  Lee 
V.  Morris 
V.  Mott 
V.  Nicholas 
V.  Taylor 
V.  Wall 
Harrison  v.  Adcock 
V.  Andrews 
V.  Bradley 
V.  Cage 
V.  Fane 
V.  State 
V.  Stewart 
Harriss  v.  Maby 
Harrod  v.  Harrod 
Harrop  v.  Howard 
Harshaw  v.  Merryman 
Hart,  In  re 

V.  Gray 
V.  Hart 
V.  Logan 
V.  Stephens 
Harten  v.  Gibson 
Hartfield  v.  Roper 
Hartley  v.  Cummings 
V.  Hurle 
V.  Tribber 
V.  Wharton 
Hartman  v.  Dowdel 
V.  Ogborn 
Hartness  v.  Thompson 
Hartwell  v.  Rice 
Harvey  v.  Ashley 
V.  Hall 
V.  Harvey 
V.  Norton 
Harwood  w.  Fisher 
V.  Lowell 
Hasheagan  v.  Specker 
Hassard  v.  Rowe 
Hastings  v.  DoUarhide 
Haswell  v.  Hill 
Hatch  V.  Gray 
V.  Hatch 
Hatcher  v.  Cutts 
Hatliaway  v.  Bennett 
Hatz's  Appeal 
Haugh  V.  Blythe 
Hause  v.  Gilger 
Havens  v.  Patterson 
Haviland  v.  Bloom 
V.  Myers 
Hawcott  V.  Collins 


116,  117,  121  I  Hawkes  v.  Hubback  192,  195 

605  Hawkins  v.  Craig  112 

330                      V.  Jones  381 

359                     V.  Obin  124 

286                      V.  Watts  325 

323  Hawkins'  Appeal  513 

356  Hawksworth  t\  Hawksworth  317 

372  Hawley  v.  Bradford  155 

227,  467                    V.  Burgess  160 

28                   V.  James  185 

78,  79  Hay  v.  Bowen  124 

90,  92  Hayden  v.  Smithville,  &c.,  Co.    620,  643 

220,  254                  V.  Stone  500 

640,  641  Hayes  v.  Watts  ,  46 

122  Haygood  o.  Harris  205 

576                     V.  McKoon  503 

587  Haynes'  Adm'r  u.  Waggoner  321 

119  Hays  v.  Henry  170 

508               V.  Seward  349,  373 

262  Haywardy.  Ellis  499,512 

649,  550,  555                     v.  Hay  ward  115 

28  Hazard,  In  re  487 

295  Head  v.  Briscoe  104 

638               V.  Halford  279 

30               V.  Head  306 

198  Headen  v.  Rosher  219 

84  Heard,  Ex  parte  445 

407                V.  Daniel  469 

431  V.  Stamford  69,  70,  159 

372  Hearst  v.  Sybert  353 

185  Heath  v.  West  584,  591 

117                 V.  Withington  261 

388  Heathman  v.  Hatl  202 

351,  352  Heckle  v.  Lurvey  104 

610,  618  Hedgeley  v.  Holt  621 

192  Hedges  v.  Riker  471 

387                 V.  Taffg  357- 

576  Heffer  v.  Heffer  38 

120,  123  Pleirn  v.  McCaughan  107 

236  Helps  v.  Clayton  549 

535,  536  Helyear  v.  Hawke  633,  635 

377  Hemmenway  v.  Towner  308 

274,  529,  535  Hemmingway  v.  Matthews  118 

522  Hemphill  v.  Lewis  498 

187  Hemstead  v.  Gas  Light  Co.  110 

84  Henderson  v.  Coover  493 

119  Hendin  v.  Colgin  161,  162 

110  Hendry  v.  Hurst  500 

230  Hennessy  v.  Stewart  348 

473  Henry  v.  Dilley  217 

541,  580                 V.  Pennington  508 
214                V.  Root                     570,  578,  589 

282  Herbert  i\  Torball  526 

512,  513  Herndon  v.  Lancaster  484 

605  Herrick  v.  Fritcher  347 

607  Herring  l-.  Goodson  411,  412 

234  Hersclifeldt  v.  George  282 

235  Hervey  v.  Moseley  355 
216  Hesketh  v.  Gowing  385 
487  Hetherington  v.  Hixon  179 

129,  208  Hetrick  v.  Hetrick  160 

208  Heugh  v.  Jones  237 

282  Hewison  v.  Negus  282 


TABLE   OF   CASES   CITED. 


xlv 


Hewson,  In  re 

174,  176 

HodsoU  V.  Stallebrass 

631 

Heygate  v.  Annesley 

1-27 

Hornsby  v.  Lee 

124 

Heysliam  v.  Heysham 

323  ' 

HoUman  v.  Gordon 

629 

Heyward  v.  Cuthbert 

327,  334 

V.  Savage 

185 

Hey  wood  v.  Brooks 

372 

V.  Toner 

246 

Hickman's  Appeal 

514 

Hoggan  V.  Cragie 

42 

Hicks  V.  Cochran 

289 

Hoit  V.  Underbill 

680,  583,  590 

V.  Johnston 

227 

Holbrook  v.  Brooks 

467,  510 

Hierstand  v.  Kuns 

521 

V.  Walters 

116 

Higgins  V.  McChire 

514 

Holcombe  r.  Holcombe 

500 

V.  Watervliet  Turnpi 

ke  Co.  641 

Holden  r.  Cope 

95,  98 

Higginson  v.  Kelly 

274 

V.  Scanlin 

413 

Hileman  v.  Bonslaugh 

157 

Hollenbeck  v.  Pixley 

171 

Hill  V.  Anderson 

543,  583 

Holley  V.  Chamberlain 

418 

V.  Caverly 

629 

Holliday  v.  Gamble 

605 

V.  Childress 

316 

Hollingsworth's  Appeal 

409 

V.  Edmonds 

149 

HoUis  V.  Francois 

286 

V.  Filkin 

317 

Holloway  v.  Headington 

284 

V.  Foley 

113 

V.  Millard 

277 

V.  Goodrich 

160 

Holman  v.  Gillette 

135 

V.  Gord 

28 

Holmes  v.  Blogg 

544,  583,  588 

V.  Hill 

317 

V.  Field 

408,  423 

V.  Hunt 

122 

V.  Holmes        43, 

119,  161,  256, 

V.  Johnston 

508 

802 

V.  Mclntire 

507 

V.  McGinty 

155 

V.  Morey 

611 

V.  Onion 

626 

V.  Saunders 

143,  148 

V.  Penney 

225,  278 

V.  Sew  aid 

100 

V.  Thorpe 

153 

V.  State 

65 

Holmes's  Apj)eal 

481 

V.  Townsend 

126 

Holt  V.  Brien 

82,  84,  92 

V.  West 

156 

V.  Holt 

134,  548 

Hillegass  v.  Hillegass 

597 

V.  Sindrey 

388 

Hilliard  v.  Richardson 

642 

V.  Ward 

535 

Hills  V.  Hobert 

355 

Holyoke  v.  Haskins 

452 

Hillsborougli  v.  Deering 

386 

Homer  v.  Thwing 

566 

Hillyer  v.  I3ennett 

591 

Ilonner  v.  Morton 

123,  125 

Hinde's  Lessee  v.  Longwort 

1            374 

Hood  V.  Archer 

259 

Hindiey  v.  Westmeath 

91,  94,  95 

V.  B  rid  port 

473 

Hinds,  Estate  of 

116 

V.  Hood 

299 

V.  Jones 

106 

Hooker  v.  Bancroft 

494 

Hinely  v.  Margaritz 

590 

Hooks  V.  Lee 

267 

Hiues  V.  Mullins 

422, 4G2 

V.  Perkins 

605 

V.  State 

445 

V.  Smith 

593 

Hinney  v.  Pl^lips 

232 

Hooper  v.  Eyles 

468 

Hinton  v.  Hudson 

96 

V.  Haskell 

108 

Hiram  v.  Griffin 

258 

Hoover  v.  Heim 

353,  360 

Hitchins  v.  Eardley 

307 

Hope  r.  Carnegie 

106 

Hite  V.  Hite 

464 

V.  Hope 

292,  412 

Hitncr's  Appeal 

294 

Hopkins,  Ex  parte 

333,  337,  342 

Hoard  v.  I'cck 

109 

V.  Carey 

112,  214 

Hoare  v.  Harris 

462 

V.  Molliiieux 

100 

Hoben  V.  Burlington,  &c.,  R. 

R.Co.  642 

Hopper  r.  ]\lcWhorter 

112 

Hobensack  v.  Hallman 

218 

Hore  V.  Becher 

126 

Hobson  ?'.  H()i)S()U 

155 

Horner  r.  Wheelwright 

225 

Hocker  v.  Woods 

440,  503 

Hornsby  v.  Lee 

145 

Hodgden  r.  Hodgden 

197 

Hort  V.  Sorrell 

207 

Hodges  V.  Cobb 

232 

Horton  v.  Byies 

107 

V.  Hunt 

582 

V.  Horton 

502 

Hodgkins  v.  Rockport 

318 

r.  McCoy 

481,  487 

Hodgkinson  v.  Fletcher 

95,98 

V.  McMurtry 

613 

Hodgson  V.  Macy 

377 

Horwood  V.  Hefler 

89 

V.  Scarlett 

625 

Hoskins  r.  Miller 

112 

Hodsden  v.  Lloyd 

251,  253 

1                  V.  Wilson 

469 

xlvi 


TABLE   OF  CASES   CITED. 


Hoste  V.  Pratt  323,  325 
Houghton  V.  Houghton  375 
Houliston  V.  Smyth  57,  90 
House  V.  House  373 
Houston  V.  Cooper  545 
Hovey  v.  Harmon                413,  424,  432 
Howard  v.  Baillie  635 
V.  Eraithwaite  636 
V.  Bryant  121 
V.  Digby                227,  240,  241 
V.  Hooker  269 
V.  Menifee  174,  201 
V-  Whetstone  91 
V.  Windham  County  Sav- 
ings Bank  285 
Howarth,  In  re  480 
Howe  V.  Colby  285 
I'.  Newmarch  637 
r.  Peabody  493 
Howell  V.  Batt  629 
V.  Cobb  503 
V.  Maine  115 
■0.  Williamson  470 
Howes  V.  Bigelow  167 
Howett  V.  Alexander  596 
Hewlett  V.  Haswell  565 
Howman  v.  Corrie  117 
Hoyle  V.  Stowe  584,  587 
Hoyt  V.  Hellen  399 
V.  Swar  537 
V.  White  243 
Hoyt's  Case  407 
Hoxie  V.  Lincoln  561,  562 
Hubbard  v.  Curamings  588 
Hubbs  V.  Rath  139 
Huchting  v.  Engel  564 
Hudson  V.  Plelmes  469 
V.  Hills  406 
V.  Jones  539 
?;.  Lutz  378 
I'.  Worden  605 
Huey's  Appeal  521 
Huflpy.  Price  147 
V.  Walker  471 
V.  Wright  212 
HufTer's  Api)eal  500 
Huffman  r.  Rout  605 
Huger  V.  linger  481 
Hughes  V.  Hughes  326 
V.  Knowlton  388 
V.  McFie  571 
V.  Merritt  186 
V.  Peters  234 
V.  Ringstaff  498 
V.  Sciene  399 
V.  Seller  596 
V.  Stokes  98 
V.  Watson  587 
V.  Wells  224,  261 
Hughes's  Appeal  471 
Huguenin  ?-.  Baseley  515 
Hulme  V.  Tenant                 190,  221,  222 
Hultz  V.  Gibbs  90 


Hume  V.  Hord  227 

V.  Hume  516 

Humphrey  v.  Bullen  162 

V.  Douglass  523,  564 

V.  Richards  189,  220 

V.  Royce  72 

Hunt,  Ex  parte  366 

Hunt  V.  Booth  201,  202 

V.  De  Blaquiere  78 

V.  Johnson  285 

V.  Massey  <  '576 

V.  Peake  535 

V.  Thompson  553 

V.  White  502 

Hunter  v.  Atkins  513 

V.  Boucher  92 

V.  Bryant  263,  266 

V.  Dashwood  472 

V.  Duvall  238 

V.  Hallett  161 

V.  Lawrence  470 

V.  Macrae  451 

V.  Rice  127 

Huntoon  v.  Hazleton  349 

Hurd  V.  Cass  164 

Hurdle  v.  Leath  477 

Hussey  v.  Roundtree  378,  456,  552,  553 

Huston  V.  Cantril  282 

V.  Seeley  164 

Hutchcraft  v.  Shrout  492 

Hutcheson  v.  Peck  57,  58 

Hutchins  V.  Colby  213,  234 

V.  Dixon  285 

V.  Dresser  462 

V.  Johnson  462,  463 

Hutchinson  v.  Hutchinson  456,  457 

V.  Underwood  230 

V.  York,  &c.,  R.R.  Co.   642 

Hutson  V.  Townsend  341 

Hutton  V.  Duey  286 

Huzzey  v.  Field  637 

Hyatt  V.Adams  107,110 

Hyde  v.  Hyde  48 

V.  Johnson               •  576 

V.  Stone  112,  392 

V.  Warren  156 

V.  Woodmansee  34 

Hylton  V.  Hylton  512,  513 

Hyman  v.  Cain  553 


I. 


Thl  V.  Street  R.  R.  Co.  353 

Ihler,  Goods  of  168 

Illidge  V.  Goodwin  638 

Illinois  Central  R.  R.  Co.  v.  Baches  639 
V.  Downey  641 

Illinois,  &c.,  R.  R.  Co.  v.  Grable  143 

Inge  V.  Forrester  203 

Ingersoll  v.  Ingersoll  596 

Ingham  v.  Bickerdike  432 

V.  White  275 


TABLE   OF  CASES   CITED. 


xlvii 


Inglefield  v.  Coghlan 

190 

Jenney 

V.  Gray 

144,  216,  231 

Inman  v.  Inman 

585,  569 

Jennings  v.  Davis 

214,  285 

Insole,  In  re 

301 

V.  Jennings 

185 

Irvine  v.  Armistead 

185 

V.  Kee 

469 

V.  Irvine            536, 

579, 

580,  586 

V.  Looks 

467 

Irwin  V.  Dearman 

359,  360 

V.  Rundall 

665 

Isaacs  V.  Taylor 

416, 

431,  438 

Jernegan  v.  Baxter 

134 

Ishan  V.  Gibbons 

312 

Jervois 

V.  Silk 

323 

Ivey  V.  Ingram 

598 

Jervoise 

V.  Jervoise 

173 

Izard  V.  Izard 

265 

Jeston  h 

■  Key 

274 

Izod  V.  Lamb 

189, 199 

Jewell  I 

.  Jewell 

45 

I 

.  Porter 

288 

Jewett, 

Ex  parte 

■    481 

J. 

V.  Davis 

154 

Jewsbury  v.  Newbold 

81,  84,  86 

Jackson  v.  Bridge 

621 

Jewson 

V.  Moulson 

123,  129,  130 

V.  Burchin 

585,  587 

Joel  V.  Morrison 

638 

V.  Carpenter 

587,  588 

Jodrell 

V.  Jodrell 

198,  240 

V.  Combs 

350 

Joim  V. 

Bradbury 

442 

V.  De  Watts 

399 

Johnes 

V.  Lockhart 

192 

V.  Gilchrist 

153 

Johnson 

V.  Avery 

487 

V.  Hankey 

453 

V.  Ballard 

366 

V.  Hill 

129 

V.  Barber 

629,  641 

V.  Hobhouse 

197 

V.  Bennett 

120 

V.  Innes 

177 

V.  Blenkensopp 

609 

V.  Jackson 

377,  473 

V.  Bruner 

643 

V.  Jones 

177 

V.  Carter 

472 

V.  Kirby 

104 

V.  Chandler 

602 

V.  McAliley 

201,  204 

V.  Cummins 

230 

V.  McConnell 

139 

V.  Gallagher 

226 

V.  Peek 

374 

V.  Gibson 

370,  371 

V.  Sears 

462 

V.  Johnson     123 

196,  441,  514 

V.  Suffern 

144 

V.  Kirkwood 

295 

V.  Town 

281 

V.  Lines 

553,  655 

V.  Vanderlieyden 

76,  156 

V.  Lusk 

289 

V.  Winne 

36 

V.  Parcels 

185 

Jacobs  V.  Amyatt 

191 

V.  Payne 

145 

Jacobson  v.  Williams 

130 

V.  Pye 

565,  668 

Jacqiiot  V.  Boiirra 

613 

V.  Rockwell 

535 

Jaffray  v.  F  retain 

536 

V.  Runyan 

214,  234 

James  v.  Taylor 

245 

V.  Silsbee 

371 

Jamison  v.  Cosby 

492,  503 

V.  Snow 

234 

Jaques  v.  Short 

165 

V.  Spaiglit 

116 

V.   The    Methodist 

Ep 

isco- 

V.  State 

333 

pal  Church 

227 

V.  Stone 

367 

Jarman  v.  Lucas 

596 

V.  Sumner 

85 

V.  Wooloton 

244 

V.  Terry 

348 

Jarrett  v.  State 

406 

,  418,  502 

V.  Tuteweiler 

237 

Jefford  V.  Ringgold 

536 

V.  Vail 

232 

Jeffrey  v.  Guy 

148 

V.  Williams 

79 

Jeffreys  v.  Vanteswartsworth 

453 

Johnston  v.  Coleman 

458 

Jenison  v.  Graves 

370,  374 

V.  Johnston 

117,  232,  285, 

Jenkins,  In  re 

122 

251,  287 

V.  Jenkins 

536 

V.  Jones 

153 

V.  Kemis 

264 

V.  Sumner 

89,  96,  98 

V.  Mitchell 

377 

Johnston's  Case 

439 

V.  Tucker 

166 

Johnstone  r.  Beattie 

407,  408 

V.  Walter 

474 

V.  Lumb 

195 

Jenks  V.  Langdon 

183 

Joliffe  I 

•.  Higgins 

462 

Jenkyn  v.  Vaughan 

277,  278 

Jolly  V 

Rees 

82,  83,  86 

Jenness  v.  Emerson     321, 

345 

,  346,  347 

Jones  I 

.  ^.tna  Ins.  Co. 

208 

V.  Robinson 

165 

V 

Beverly 

506,  611 

Jenney  v.  Alden 

371 

! 

.  Billstein 

487 

xlviii 


TABLE   OF   CASES    CITED. 


Jones  V.  Blanton 

492 

Kekewich  v.  Manning 

284 

V.  Brewer            185,  464 

472,  560 

Kelchner  v.  Forney 

514 

V.  Brown 

160,  260 

Kellaway  v.  Johnson 

224 

V.  Buckley 

346 

Keller  v.  Phillips 

83,  85 

V.  Butler 

530,  582 

i\  Ruis 

234 

V.  Cuthbertson 

226 

Kelley  v.  Davis 

327 

V.  Foxall 

478 

Kellogg  V.  Robinson 

100 

V.  Hart 

637 

Kelly  V.  Drew 

214,  248 

V.  Hicrgins 

274 

V.  Kelly 

61 

V.  Hollopeter 

472 

V.  Small 

64 

r.  Jones                         16 

286,  474 

Kemble  v.  Kean 

610 

V.  Littledale 

628 

Kemp  V.  Cook 

543,  570 

V.  Patterson 

143 

V.  Downham 

94 

V.  Perr_y 

446 

Kempe  v.  Pintard 

151 

V.  Phenix  Bank 

580,  586 

Kenan  v.  Hall 

478 

V.  Pliimmer 

151 

Kendall  v.  Lawrence 

539 

V.  Steele 

593 

V.  Miller 

467 

V.  Stockett 

318,  325 

Kendrick  v.  Wilkinson 

492 

V.  Tevis 

354,  355 

Kenly  v.  Kenly 

266 

V.  Waits 

293 

Kennaird  v.  Adams 

469 

V.  Ward 

425,  426 

Kennard  v.  Burton 

361 

Jones's  Appeal              66,  264, 

383,  440 

Kennedy  v.  Doyle 

543 

Jordan  c.  Cummings 

238 

Kenningham  v.  M'Laughlin 

350 

V.  Jones 

1-51 

Kennison's  Trusts,  In  re 

325 

0.  Norton 

636 

Kenniston  v.  Leighton 

485 

V.  Wikes 

148 

Kenny  v.  Udall            126,  129 

130,  517 

Jorden  r.  ^loney 

268 

Kenrick  v.  Wood 

198 

Joyce  V.  McAvoy 

294 

Kensington  i\  DoUowd 

189 

Joyner  v.  Denny 

126 

Kent  V.  Burgess 

50 

Judge  of  Probate  i'.  Hinds 

413 

V.  Dunham 

185,  378 

Judkins  v.  Walker 

561 

V.  State 

46 

Judson  f.  Blanchard 

595 

Keogh  V.  Cathcart 

222 

V.  Storer 

597 

Kerman  v.  Howard 

289 

Junction  Railroad  Co.  v.  Harris         143 

Kerns  v.  Peeler 

154 

Justices  V.  Willis 

502 

Kerr  v.  Bell 

591 

V.  Forgue 

571,  573 

Kessee  v.  Mayfield 

623 

K. 

Kettletas  v.  Gardner           418, 

430,  460 

Kevan  v.  Waller 

408,  439 

Kane,  Matter  of                  322 

323,  324 

Kejes  V.  Keyes 

35 

Kantrowitz  v.  Prather 

230 

Kidney  v.  Coussmaker 

278 

Karr  v.  Karr 

441,  475 

Kilcrease  v.  Shelby 

560 

Kauffelt  (-•.  Modervvell 

347' 

Kilgore  v.  Jordan 

569,  570 

Kavanaugh  v.  Janesville 

108,  110 

Killick,  Ex  parte 

189 

Kay  V.  Crook 

268 

Kimball  v.  Boston 

645 

V.  Wliittaker 

149 

V.  Fisk                   421 

424,  485 

Kaye  v.  Crawford 

374 

V.  Keyes 

95,  322 

Kaye's  Case 

414,  418 

Kimm  v.  Weippert 

227 

Keane  v.  Boycott                354, 

534,  535 

Kincaid's  Trusts,  In  re 

131 

Kearney  o.  Denn 

308 

King  r.  Cotton 

270 

Keating  v.  Condon 

179 

V.  Gottschalk 

214 

Keaton  v.  Davis 

328 

V.  Hodnett 

382 

V.  Scott 

232 

V.  Luffe 

307 

Kebble,  Ex  parte 

327 

V.  Mittalberger 

230 

Kee  V.  Vasser 

207 

V.  Rother  Field  Grays 

560 

Keecli  V.  Keech 

56 

V.  Seals 

466 

Keegan  v.  Smyth 

95 

Kingman  v.  Perkins 

541 

Keeler  v.  Fassett 

350 

Kinnard  v.  Daniel 

267 

Keen  v.  Hartman 

105 

Kinnen  v.  Maxwell 

545,  591 

Keeney  v.  Good 

236 

Kinner  v.  Walsh 

234 

Keister  v.  Howe 

135 

Kinney  v.  Showdy 

536 

Keitli  V.  Miles 

500 

Kinnier  v.  Kinnier 

35,  299 

V.  Woonibell 

282 

Kintzinger's  Estate 

300 

TABLE   OF   CASES   CITED. 


xlix 


Kippen  v.  Darley 

273 

Laing  »>.  Cunningham 

243 

Kirby  v.  Bruns 

166 

Lamb  v.  Lady  Palk 

638 

V.  Taylor 

514 

Lamb's  Appeal 

478 

V.  Turner 

439 

Lanibe  v.  Eames 

388 

Kirk  V.  Paulin 

190 

Lamburn  v.  Cruden 

621 

Kirknian,  Ex  parte 

487 

Lammoth  v.  Maulsby 

605 

Kirkpatrick  v.  Bauford 

213 

Lamphir  v.  Creed 

112,  116 

V.  Lockliart 

354 

Lancaster,  hi  re 

295 

Kitchen  v.  Bedford 

285 

V.  Dolan 

227 

V.  Lee             185,  545, 

546,  591 

V.  Evors 

178 

Kittredge  v.  Betton 

514 

Lance  v.  Norman 

269 

Kleinert  v.  Ehlers 

308 

Lane  v.  Cotton 

629,  630 

Kline  v.  Beall 

591 

V.  Ironmonger 

81,82 

V.  Beebe 

392,  583 

V.  McKeen 

153 

V.  Central  Pacific  R.  R. 

Co.     571 

V.  Phillips 

622 

V.  Kline 

271 

Lang  V.  Pettus 

414 

V.  L'Amoreux 

553 

Lange  v.  Werk 

610 

Kline's  Estate 

271 

Langford  i'.  Frey 

537 

Klopfer  V.  Bromme 

360 

Langfort  v.  Tyler 

81 

Knapp  V.  Crosby 

596 

Langham  v.  Nenny 

114 

V.  Smith           214,  215, 

231,  238 

Lanoy  v.  Athol 

63,  276,  326 

V.  Windsor 

289 

Lansier  v.  Ross 

205 

Knight  V.  Branner 

121 

Lantz  V.  Erey 

378 

V.  Knight 

59,  196 

Lapsley  v.  Grierson 

311 

17.  Wilcox 

356,  359 

Larkin  v.  Mann 

596 

Knott  V.  Carpenter 

166 

Lashbrook  v.  Patten 

361 

V.  Cotter                   418 

451,  477 

Lassence  v.  Tierney 

265 

Knowles  v.  Hull 

248 

Latouche  v.  Latouche 

222 

Knowlton  v.  Brade  y          474 

475,  500 

Latourette  v.  Williams 

120 

I^ox  V.  Bushell 

79 

Laugher  v.  Pointer 

638 

V.  Flack 

540 

Laughlin  v.  Eaton 

107 

V.  Jordan 

230 

Laurence  v.  M'Arter 

540 

V.  Picket 

205 

V.  Sinnamon 

215 

Knye  v.  Moore                    386 

387,  388 

Lavender  v.  Blackstone 

282 

Kolls  V.  De  Leyer 

235 

Lavie  v.  Phillips 

244 

Konigniacher's  Appeal 

477 

Law  V.  Wilkin 

829 

Koontz  V.  Nabb 

230 

Lavves  v.  Lumpkin 

141 

Kowing  V.  Manley 

104 

Lawrence  v.  Bartlett 

261 

Kraft  V.  Wickey 

444,  445 

V.  Finch 

231 

Kraker  i'.  Byrura 

457,  553 

V.  Kidder 

610 

Krebs  v.  O'Grady 

100 

Lawson  v.  Lovejoy 

579 

Kreig  v.  Wells 

361,  572 

V.  Perry 

620 

Kreiser's  Appeal 

185 

V.  Shotwell 

300 

Kriger  v.  Day 

301 

Lawson's  Appeal 

377 

Kuchenbeiser  v.  Beckert 

598 

Leach  v.  Duvall 

271 

Kuhn  V.  Stansfield 

282 

V.  Noyes 

153 

Kurtz  V.  Hibner 

373 

V.  Prebster 

179 

V.  Saylor 

252,  253 

V.  Rogers 

624 

Kyle  V.  Barnett 

478,  511 

Leadbitter  v.  Farrow 

628 

Kynnaird  v.  Leslie 

49 

Leaphart  v.  Leaphart 

65 

Leavel  v.  Bettis 

416,  433 

L 

Leavitt  v.  Peel 

228 

V.  Leavitt 

37,  38,  282 

Labaree  v.  Colby 

23 

Leaycraft  v.  Hedden 

227 

Lacey,  Ex  paric 

469 

Lebanon  v.  Griffin 

365,  366 

Lacon  v.  Higgins 

47 

Lecone  v.  Sheires 

394 

Lacy  V.  Osbaldiston 

614 

Ledlie  v.  Vrooman 

230 

V.  Williams 

412 

Lee  V.  Bennett 

253,  257,  258 

Ladd  V.  Hildebrant 

152,  231 

V.  Brown 

516 

V.  Lynn 

79 

V.  Hodges 

357 

Lady  Chester's  Case 

407 

V.  Lanahan 

75,  217 

Lady  Teynham  v.  Lennard 

417,418 

V.  Lee 

421,  432 

Lady  Teynhara's  Case 

317 

V.  Morris 

230 

TABLE   OF   CASES   CITED. 


Lee's  Appeal 
Leeds  v.  Vail 
Lees  V.  Wliitconib 
Lefever  v.  Lefever 
Lefevre  v.  Laraway 
Letevres  r.  Murdock 
Lefils  V.  Sugg 
Legard  r.  Hodges 
V.  Johnson 
Legeyt  v.  O'Brien 
Legg  V.  Goldwire 

V.  Legg 
Lehman  v.  Brooklyn 
Leidig  V.  Coover's  Ex'rs 
Leigh  V.  Byron 
Leighton  v.  Sheldon 
Leitensdorfer  v.  Hempstead 
Leland  v.  Whitaker 
Lemley  v.  Atwood 
Lemon  v.  Hansbarger 
Lenderman  )'.  Talley 
Lenoir  v.  Binney 
V.  Bristow 
Leonard  v.  Leonard 

V.  Townsend 
Lester  v.  Garland 
Lethem  v.  Hall 
Letts  V.  Brooks 
Levering  v.  Heighe 

V.  Levering 
Levett  V.  Penrice 
Levinz  v.  Will 
Lewellin  v.  Cobbold 
Lewin's  Trusts,  In  re 
Lewis  V.  Babcock 
V.  Caperton 
V.  Eutsler 
V.  Harris 
V.  Johns 
V.  Littlefield 
V.  Mathews 
V.  Peachey 
V.  Price 
V.  Sawj'er 
Lewson  v.  Copeland 
Libhart  v.  Wood 
Lichty  V.  Hagar 
Liddlow  V.  Wilmot 
Light's  Appeal 
Eighty  V.  Clouston 
Lilley  v.  Elwin 
Linipus  V.  London,  &c.,  Co 
Lindley  i-.  Cross 
V.  Smith 
Lindo  V.  Belisario 
Lindsell  v.  Thacker 
Lingen  v.  Lingen 
Linner  v.  Grouse 
Linton  v.  Walker 
Lipe  V.  Eisenlerd 
Lippitt  V.  Huston 
Litchfield  v.  Cadworth 
Litson  V.  Brown 


410 
100 
625 
430,  433 
469 
302 
649 
274 
292,  293 
30 
272 
112,  300 
571 
372 
387 
65 
588 
213,  216 
508 
506 
115,  119 
202 
621 
422 
238 
274 
419,  453 
346 
279 
530 
83 
275 
270 
133 
.     108 
282 
381 
228,  233 
231 
566 
193 
605 
121 
629 
473 
613 
166 
90,  95,  98 
478 
633 
607,  613,  619 
639 
234 
153 
40 
189 
310,  313 
595 
506 
372 
154 
144 


Little  V.  Downing  165 

V.  Duncan  538,  579 

V.  AVilletts  231 

Little  Miami  R.  R.  Co.  v.  Stevens     645 
y.  Wetmore  638 
Livermore  v.  Bemis  491 

Liverpool  Adelphi  Loan  Associa- 
tion V.  Fairhurst 
Livesej'  v.  Harding 
Livesle}'  r.  Lasalette 
Livingston,  In  re 

V.  Livingston 


105 

460 

231 

552,  559 

266,  286 


Lloyd,  In  re  383,  384 

V.  Lloyd  274 

r.  Mason 
I'.  Petigean 
V.  Pughe 
Locke  V.  Smith 
Lockett  V.  James 
Lockhart  v.  Phillips 
Lockwood  V.  Fenton 
V.  Salter 
V.  Stockholm 
V.  Thomas 
Lockyer  v.  Savage 
V.  Sinclair 
Loftris's  Case 
Logan  V.  Fairlee 
V.  Goodall 
V.  Hall 
V.  Phillips 
V.  Thrift 
V.  Wienholt 
Long  V.  Morrison 

V.  Norcom 
Longley  v.  Hall 
Longmeid  v.  Holliday 
Longmire  v.  Pilkington 
Longstreet  v.  Tilton 
London  &  North- Western  R.  R.  Co. 

V.  M'Michael 
Loomis  V.  Cline 

V.  Newhall  321,  330 

Lord  V.  Hough  416,  450 

r.  Parker  248,  249 

V.  Poor  371 

Lord  Cloncurry's  Case  50 

Lord  Montford  v.  Lord  Cadogan       224 

Loring  i'.  AUine  502 

V.  Bacon  492 

V.  Thorndike  50 

Loud  V.  Loud  294 

Louisville  &  Nashville  R.  R.  Co.  v. 

Collins  645 

Love  V.  Graham  273 

V.  IMoyneham  295 

V.  Robertson  216 

V.  Watkins  235 

Lovelace  v.  Smith  473 

Lovell  V.  Minot  477 

Lover  v.  Lover  135 

Lovett  V.  Salem,  &c.,  R.  R.  Co.        572 

468 


133 

50 
135 
655 
185 
508 
416 

71 
162 

95 
274 

41 
140 
419 
266 
232 
275 
155 
267 
110 
458 
500 
108 
462 
462 

543 
574 


95  1  Low  V.  Purdy 


TABLE   OF   CASES   CITED. 


li 


Lowe  V.  Cody 

117 

Mallory  v.  Vanderheyden 

71,  73 

V.  Griffith 

552 

Maltby  v.  Harwood 

605,  620 

V.  Sinklear 

561, 

562 

Manby  v.  Scott 

67,  81,  82,  91 

Lowell  v.  Boston  &  Lowell  R.  R 

.Co. 

638 

Manchester  v.  Smith 

371 

Lower  Augusta  v.  Salinsgrove 

384 

Mandabach  i^.  Mock 

246 

Lowery  v.  Craig 

127 

Mangam  v.  Brooklyn  R.  R.  Co.         572 

Lowry  v.  Button 

343 

Mangan  v.  Attertou 

571 

V.  Drake 

591 

Manion  v.  Titsworth 

126 

V.  NaflP 

100 

Manley  v.  Field 

357 

Lowndes  v.  Lowndes 

387 

Mann  v.  Higgins 

124 

Loyd  V.  Malone 

486, 

510 

V.  McDonald 

469 

Lufkin  V.  Mayall 

561 

Manning  v.  Baker 

496,  500 

Luishaber  v.  Hairman 

218 

V.  Chambers 

279 

Lumb  V.  Milnes 

191, 

196 

V.  Joiinson 

691 

Lumley  v.  Gye            354,  360, 

631, 

632 

Manson  v.  Felton 

438 

Lunay  v.  Vantyne 

314 

Manvell  v.  Thomson 

366,  359 

Lunday  v.  Thomas 

464 

Manwaring  v.  Sands 

92 

Lush's  Trusts,  //(  ?-e 

135 

Maples  V.  Wightman 

537 

Lushington  v.  Sewell 

194 

March  v.  Bennett 

467 

Luttrell  V.  Hazen 

641 

V.  Berrier 

481 

Lygo  V.  Newbold 

572 

Marchioness  of  Annandale  v.  Har- 

Lyman v.  Cessford 

282 

ris 

386 

Lyn  V.  Ashton 

226 

Margetts  v.  Barringer 

190 

Lynch  v.  Lynch 

54 

Marlett  v.  Wilson 

386 

V.  Nurdin 

572 

Marlow  v.  Pitfeild 

556 

V.  Rotan 

496 

503 

Marsh,  Ex  parte 

263 

Lynde  v.  Budd 

584, 

589 

V.  Alford 

237 

V.  McGregor 

215 

V.  Blackmau 

366 

V.  Lyne 

190 

V.  Loader 

523 

Lyne,  Succession  of 

520 

V.  Marsh 

213,  216 

V.  Bank  of  Kentucky 

286 

V.  Rulcsson 

622 

Lynn  v.  Bradley 

126 

V.  Tyrrell 

259 

Lyon  V.  Boiling 

370 

371 

Marshall  v.  Blew 

176 

Lyons  v.  Blenkin 

336 

337 

V.  Fowler 

131 

V.  Martin 

638, 

640 

V.  Miller 

237 

Lytle's  Appeal 

232 

V.  Oakes 

102 

V.  Rutton 

76,93 

M. 

V.  Stewart 
i;.  Wing 

644 
598 

Maas  V.  Slieffield 

252 

253 

Marston  v.  Fox 

251 

Macauley  v.  Phillips 

127 

128 

V.  Norton 

258 

MacKinley  v.  McGregor 

98 

247 

Martin,  Ex  parte 

453 

Maclay  v.  Love                   218, 

230 

235 

Goods  of 

255 

Maclin  v.  Smith 

458 

V.  Curd 

216 

Macready  v.  Wilcox 

399 

450 

V.  Foster 

159,  167,  433 

Madden  v.  Gilmer 

215 

V.  Mayo 

580 

Maddox  v.  State 

605 

V.  McDonald 

445,  446 

Madox  V.  Nowlan 

267 

V.  Mitchell 

151 

Magee  v.  Holland 

360 

V.  Payne 

357 

Magness  v.  Walker 

67 

V.  Stevens 

470 

Magniac  v.  Thompson 

264, 

282 

V.  Weynian 

693 

Magruder  v.  Darnall             75 

443 

500 

Marvin  v.  Schilling 

467,  485 

V.  Goodwyn 

606 

514 

Mary  Clark's  Case 

611 

V.  Peter 

471 

Mason,  Matter  of 

467 

Maguinay  v.  Saudek 

359 

V.  Fuller 

68,  213 

Mahoney  v.  McGee 

485 

V.  Homer 

68 

Mainwaring  v.  Leslie 

93 

V.  Hutchins 

505 

Mainwaring's  Settlements 

274 

V.  Mason 

Maitland  v.  Backiiouse 

516 

V.  McNeill 

126 

Major  V.  Symmes                230 

235 

237 

V.  Mitchell 

244 

Male  V.  Roberts 

521 

V.  Morgan 

75, 118 

Mallan  v.  May 

610 

V.  The  Blaireau 

633 

Mallinson  v.  Mallinson 

341 

,342 

V.  Wait 

484 

lii 


TABLE   OF   CASES   CITED. 


Mason  i'.  Wright 
Massey  v.  Massey 
V.  Parker 
I'.  Taylor 
Massie  v.  Sebastian 
Massingale  v.  Tate 
Master  v.  Fuller 
Matherson  r.  Davis 
Matliews  ;'.  Waile 
Matthewman's  Case 
Matthews  v.  Brise 
V.  Fiestel 
V.  State 
Matthewson  v.  Ferry 
Mattiiigly  ;-■.  Nye 
Mattouks  V.  Stearns 
Mattoon  v.  Cowing 
Maull  V.  Vaughn 
Maunsell  o.  White 
Mavvson  v.  Biane 
Maxsoni  v.  Sawyer 
Maxwell,  Ex  jiarte 
May  V.  Koper 
Mayburry  v.  Brien 
Mayde  v.  Biggs 
Mayer  v.  Calhichat 

V.  Mc'Lnre 
Mayfield  r.  Clifton 
Mayhew  v.  Baker 

V.  Thayer 
Maynard  r.  Williams 
Mayne  v.  Baldwin 
Mayo  V.  Hutchinson 


545,  561 
475 
191 
623 
156 
416 
221 
589 
421 
226 
474 
102 
65 
349 
282 

144,  149 
491,  493,  497 
179 
268 
576 
424 
418 
134 
185 
100 
239 
590 
116 
■  246 
78,89 
216 
343 
230 


Mnzouck  V.  Iowa  Northern  R.  R.Co.  232 


McAfee  v.  Kentucky  University 
McAllister  v.  Olmstead 
McBride  v.  McBride 
McBurnie,  Ex  parte 
McCahan's  Appeal 
McCandless  ?•.  Engle 
M'Cartee  v.  Teller 
M'Carthy  v.  Guild 
McCarthy  v.  Hinman 
McCarty  v.  Carter 
V.  Murray 
M'Clallan  v.  Adams 
McClary  i'.  Lowell 
M'Clellaii,  Ex  parte 
McClellan  v.  Kennedy 
McClendon  v.  Harlan 
McClintic  v.  Ocheltree 
M'Closkey  v.  Cyphert 
McClure  v.  Evans 
McClurg  V.  Terry 
McClurg's  x\ppeal 
McCluskeyi'.  l-'rovident  Institution  243 
M(}<;;oon  V.  Smith  564 

McCormick  v.  Holbrook  230 

V.  McCormick  54 

McCormie  ii.  Leggett  546,  586 

McCosker  v.  Golden  160 

M'Cov  V.  Huffmann  561 

M'Crillis  v.  How  557 


55 
433 
341 
264 
470 
153 
530 
361 
326 
688 
541 

80 
350 
333 
514 
491 
227 
370,  371 
876 

38 

54 


285, 


McCrory  v.  Foster  120 

McCubbin  v.  Patterson  218,  294 

M'CuUochs,  In  re  432 

McCuUough  V.  Wilson  155 

McCutchen  v.  McGahay  82,  83,  91 

McDaniel  v.  PMward  356 

V.  Mann  456 

V.  Whitman  113 

McDermott  i\  French  295 

McDonald,  In  re  560 

V.  Meadows  491 

V.  Montague  562 

V.  Snelling  658 

M'Donald  v.  Crockett  202 

McDonell  v.  Harding  474 

McDow  V.  Brown  514 

McDowell  V.  Caldwell  458 

M'Dowles'  Case  560 

McElhenny's  Appeal  499,  500 

McElroy's  Case  29 

McFaddin  v.  Grumpier  230 

McFaddyn  v.  Jenkins  284 

McFarland  v.  Conlee  508 

McFarlane  v.  Handle  499 

McFerrin  v.  White  154 
McGan  v.  Marshall              533,  587,  588 

McGavock  v.  Whitfield  230 

M'George  v.  Egan  81 

M'Giffin  V.  Stout  598 

M'Gill  V.  Woodward  588 

McGregor  v.  Sibley  246 

McGuire  v.  Grant  612 

McGunigal  v.  Mong  384,  605 

McHenry  v.  Davies  93,  295 

Mclnnes  v.  More  42 

Mclntyre  v.  Knowlton  231 

McKarlin  v.  Bresslin  243 

McKay  v.  Allen  205,  207 

McKee  v.  Eevnolds  294 

McKennan  r.' Phillips  201,  202 

M'Kenzie  v.  McLeod  638 

McKeown  v.  Johnson  102 

McKinney  v.  Clarke  38 

V.  Hamilton  234 

McKinnon  v.  McDonald  247 

M' Knight  v.  Hogg  605 

McLean,  Succession  of  16 

V.  Longlands  242 

McLaren  r.  Hall  231 

McLaughlin  v.  McLaughlin  185 

McLaurie  v.  Partlow  350 

McMahon  v.  Davidson  642 

V.  Lewis  83 

McManus  v.  Crickett  362,  640 

M'Minn  v.  Richmond  538,  557 

McMullen  v.  McMuIlen  287 

McMurray  v.  McMurray  596 

M'Nair  y.  Hunt  469 

McNeely  v.  Jamison  446 

McNeilage  v.  HoUoway  118 

McQueen  v.  Fulgham  104 

Mead  v.  Hughes  295 

Meader  v.  Page  100 


TABLE   OF   CASES    CITED, 

liii 

Meals  V.  Meals 

128 

Miller  v.  Blackburn 

113 

Means  v.  lioljinson 

619 

V.  Brown 

230 

Meara  v.  Ilolhrook 

645 

V.  Carnall 

503 

Mears  v.  Biekford 

349 

V.  Delamater 

98 

Mel)ane  v.  Mebane 

462 

V.  Edwards 

232 

Meiibury  i;.  Watrous 

561 

V.  Goodwin 

266 

Med  worth  v.  Pope 

387 

388 

V.  Harris 

408 

Meek  v.  Kettlewell 

284 

V.  Hine 

235 

V.  Perry 

514 

V.  Miller 

301 

372 

Meeker  v.  Hurd 

562 

621 

626 

V.  Newton 

230 

Melbourn,  Ex  parte 

16 

V.  Shackleford 

147 

149 

Melley  v.  Casey 

235 

V.  Sims 

545 

Mellingen  v.  Bausmann 

122 

217 

V.  State 

64 

102 

Mellish  V.  Mellish 

443 

515 

V.  Stewart 

381 

Mendes  v.  Mendes 

408 

424 

425 

V.  Sweitzer 

104 

Menifee  v.  Hamilton 

482 

V.  Talley 

185 

Menvill's  Case 

145 

V.  Wetherby 

235 

Mercein  v.  People 

292, 

340 

343 

V.  W^illiams 

138 

Mercer  v.  Jackson 

353 

V.  Williamson 

241 

V.  Whall 

615 

Miller's  Appeal 

376 

377 

Mercliants'  Bank  i'.  Scott 

230 

Miller's  Estate 

473 

Merchants,'  Fire  Ins. 

Co. 

V.  Grant 

585 

Mills  V.  Graham 

566 

Meredith  v.  Crawford 

620 

V.  Humes 

593 

Meriwether  v.  Smith 

242 

V.  Wyman 

321,  330 

366 

Merrells  v.  Phelps 

492 

Milner  v.  Lord  Harewood 

461 

529 

Merriam  v.  Cunning! 

lara 

549, 

552, 

555, 

568 

V.  Milnes 
Milwaukee  &  Miss.  E,  R 

.   Co    V. 

106 

0.  Ilarsen 

286 

287 

Finney 

641 

V.  Wilkins 

582 

Minard  v.  Mead 

100 

Merrick  v.  Plmnley 

232 

Miner  v.  Miner 

339 

Merrill  v.  Bullock 

218 

Minfee  v.  Ball 

443 

V.  Smith 

243 

Minier  v.  IMinier 

67 

Merritt  v.  Fleming 

386 

Minock  v.  Shortridge 

545 

V.  Lyon 

207 

Minor  v.  Betts 

488 

V.  Simpson 

473 

Miss  AVatson's  Case 

197 

V.  Williams 

574 

Mitchel  V.  Reynolds 

610 

Merriweather  v.  Broi 

ker 

138 

Mitchell  V.  Berry 

598 

Merry  v.  N-ickalls 

644 

V.  Crassweller 

639 

Messervey  v.  Barelli 

508 

V.  Gates 

274 

Messinger  v.  Clarke 

188, 

195 

220 

V.  Holder 

258 

Metcalfe  v.  Shaw 

83 

I'.  Holmes 

160 

Meth.  Ep.  Church  v. 

Jaques 

201, 

206, 

V.  Jones 

487 

227 

V.  Mitcliell 

605 

Metier  v.  Metier 

67 

I'.  Moore 

265 

Metropolitan  Bank  v 

Durant 

282 

V.  Otey 

214 

Mews  V.  Mews 

242 

V.  Sawyer 

247 

Meyer  v.  Haw  worth 

74 

I'.  Treanor 

84,  93,  95 

Michael  v.  Alestree 

637 

V.  Union,  &c.,  Ins 

Co. 

349 

V.  Baker 

257 

V.  Williams 

507 

V.  Morey 

264 

Mitford  V.  Mitford 

123,  124 

138 

Middlebury  College 

;.  Chandler 

550 

Mizen  v.  Pick 

76,94 

Middleton  v.  Hoge 

589 

Mockey  v.  Grey 

593 

Midland  R.  R.  Co.  v. 

Pye 

295 

Modawell  v.  Holmes 

433 

Miles  V.  Boyden 

350, 

593 

596 

Moehring  v.  Thaver 

258 

V.  Chilton 

34 

Moffatt  V.  Moffatt 

55 

V.  Lingernian 

589 

591 

Mohney  v.  Evans 

550 

552 

V.  Williams 

71 

124 

142 

Moloney  v.  Kennedy 

194 

Milford  V.  Milford 

326 

Molton  V.  Martin 

214 

V.  Peile 

274 

Moncriof  v.  Ely 

385 

Millard  v.  Hewlett 

642 

Monell  V.  Burns 

623 

Miller,  Matter  of 

129 

V.  Monell 

506 

I'.  Aris 

629 

f.  Scherrick 

374 

V.  Bingham 

207 

Money  v.  Jorden 

268 

liv 


TABLE   OF   CASES   CITED. 


Monroe  v.  Twistleton  64 

Monson  v.  Williams  86 

Montague  v.  Benedict        79,  80,  84,  93 

Montefiore  v.  Belirens  132 

V.  Belireno  121 

Montgomery  v.  Clianey  377 

V.  Henderson  267 

V.  Montgomery      37,  311 

V.  Smith  410,  432 

V.  Sprankle  249 

V.  Tate  144,  215 

V.  Tilley  279 

Montgomery  Bank  v.  Albany  Bank  630 

Moniimental,   &c.,  Association   v. 


Herman 

Moody  V.  Matthews 

V.  Osgood 
Moon  V.  Towers 
Moore  v.  Abernethy 
V.  Baker 
V.  Calvert 
V.  Graves 
V.  Hazelton 
Hood 


588,  546 
139 

215 
363 

585,  587 
502 
164 

522,  523 
514 
502 


V.  Metropolitan  K.  R.  Co.  637 
V.  Moore  124,  130,  198,  526,  528 
189,  219 
145 
640,  641 
295 
634 
154 
491,  492 
194 
47 
498 
267 
417,  430 


Morris 
V.  Richardson 
V.  Sanborne 
V.  Stevenson 
V.  Tickle 
V.  Titman 
V.  Wallis 
V.  Webster 
V.  Whittaker 
Moorehead  v.  Orr 
Moorhouse  v.  Colvin 
Morehouse  v.  Cooke 
Morrell,  In  re 

V.  Dickey 
Morgan  v.  Anderson 
V.  Bolles 
V.  Dillon 
V.  Elam 
V.  Hughes 
V.  McGhee 
V.  Morgan 
V.  Perry 

V.  Thames  Bank 
V.  Thorne 
Moritz  V.  Garnhart 
Morony  v.  O'Laughlin 
Morrill  v.  Aden 
Morris  v.  Davies 
V.  Garrison 
V.  Harris 
V.  Low 
V.  Martin 
V.  Miller 
V.  Morris 
V.  Palmer 
V.  Stephenson 
Morrison  v.  Holt 


444,  445 

430 

243 

429,  433 

227 

82 

48 
495,  500 
310 
112 
594 
386 

67 

565,  567,  591 

307 

462 

408 

349,  369 

92 
109 
483 

87 
152 

79 


Morrison  v.  Norman 
Morrison's  Case 
Morrow  v.  Whitesides 
Morse  v.  Royal 

V.  Thompson 
V.  Welton 
V.  Wiieeler 
Mortara  v.  Hall 
Mortimer  ;;.  Mortimer 
Mortimore  v.  Wright 
Moseley  v.  Rendell 
Moses  V.  Forgartie 

V.  Stevens 
Mosher  v.  Mosher 
Moss  V.  Pacific  R.  R.  Co. 
Mosteller's  Appeal 
Motley  V.  Head 
V.  Motley 
V.  Sawyer 
Mott  V.  Comstock 
Motte  V.  Alger 
Motteux  V.  St  Aubin 
Mount  V.  Kesterton 
Mountain  v.  Fisher 
Mountfort,  Ex  parte 
Mousler  v.  Harding 
Moyer's  Appeal 
Muckenburg  v.  Holler 
Mudway  v.  Croft 
Mulhallen  v.  Marum 
Mulhern  v.  McDavitt 
Muller  V.  Bayly 
Mulvey  v.  State 
Mumford  v.  Gething 
Mundy  v.  Earl  Howe 
Munger  v.  Hess 
Munn  V.  Reed 
Munro  v.  Munro 

V.  Saunders 
Munroe  v.  De  Chemant 
Munson  v.  Munson 

V.  Washband 
Murdock  v.  Murdock 
Murphree  v.  Singleton 
Murray  v.  Barlee 
V.  Currie 
V.  Elibank 
V.  Mann 
Murrison  v.  Seller 
Musser  v.  Gardner 
V.  Oliver 
V.  Stewart 
Mustard  v.  Wohlford 
Myatt  V.  Myatt 
Myer  v.  Rives 
Myers  v.  Myers 
V.  Pearsoll 
V.  Wade 


N. 


Nace  V.  Boyer 
Naill  V.  Maurer 


218 
445 
70 
512 
259 
371 
590 
554 
292 
327,  329 
181 
83 
561,  562 
185 
643 
372 
505 
516 
288 
94 
288 
536 
153 
562 
337 
67 
159 
302 
29 
513 
500 
287 
102 
610 
325 
567 
571 
309 
313 
86 
412 
552 
378 
135 
221,  224 
645 
129,  133 
626,  635 
16 
66 
507,  514 
386 
538,  584 
42 
514 
322,  324,  325 
431 
457,  459 


274 


TABLE   OF   CASES   CITED. 


Iv 


Nairn  v.  Prouse  203 

Nance  v.  Nance  476,  477,  496 

Nanney  v.  Martin  127 

Napier  v.  Effingham  528 

Nasli  V.  Nash  115,  118 

V.  SpoflFord  156 

Nashville,  &c.,  R.  R.  Co.  v.  Elliott  561, 

562 
National  Bank  v.  Sprague 
Nations  v.  Cudd 
Naylor  ?,'.  Winch 
Neal  V.  Gillett 

Nedby  v.  Nedby  260 

Needham  v.  Bremner 


114, 


Needles  v.  Needles 
Neill  V.  Neill 
Neilson  ?'.  Cook 
Neimcewicz  v.  Gahn 
Nelson  v.  Eaton 

V.  Goree 

V.  Green 

t»./Lee 

V.  Searle 

V.  Stocker 

V.  Wyan 
Nettleton  v.  State 
Neufville  v.  Thompson 
Neves  v.  Scott 
Newbery,  In  re 
Newcomen  v.  Hassard 
Newcomer's  Appeal 
New  Hampshire  Ins.  Co.  v.  Noyes  536, 

549 
Newliouse  v.  Miller  67 

Newlands  v.  Paynter  113,  189,  220 

Newlin  v.  Freeman  253,  258 

Newman  v.  James  202 

Newport  v.  Cook  323,  324,  327 

Newry  &  Enniskillen  R.  R.  Co.  v. 

Coombe  543 

Newsome  ?'.  Bowyer  255 

Newton  v.  Hatter  108,  110 

Newton  v.  London,  Brighton,  &c.. 


247 
619 
512 
563 
286 
92 
126 
491 

499,  500 
1.55 
536 
161 
414 
446 
74 
569 
377 
431 
243 

265,  267 
460 

220,  221 
492 


Noble  V.  Noble 

V.  Withers 
Nolen's  Appeal 
Nolte  V.  Libbert 
Norbury  v.  Norbury 
Norcross  v.  Stuart 
Norman  v.  Norman 
Norris  v.  Dodge's  Adm'r 

V.  Lantz 

V.  Vance 
North,  In  re 

North  American  Coal  Co 
North  Penn.  R.  R.  Co.  v. 

Norton,  Ex  parte 

V.  Fazan 

r.  Rhodes 

V.  Turrill 

V.  AVarner 
Norwood  V.  Stevenson 
Nowlan  v.  Ablett 
Noyes  i'.  Blakeman 
Nugent  V.  Vetzera 
Nunn  V.  Hancock 
Nurse  v.  Craig 


164 

67 

123 

686 

476 

108 

228 

830 

130 

582,  590 

317,  4.50 

.  V.  Dyett   228 

Mahoney  572, 

573 

121 

92 

86 

196 

109 

102 

607,  609 

228 

444 

480 

95,98 


O. 

Oakes  V.  Oakes  873 

Oakley  v.  Pound  230 

Obermayer  r.  Greenleaf  264 

O'Brien  v.  Barry  106 

V.  Ram  73 

O'Daily  v.  Morris  75,  238 

Offley  V.  Clay  75,  112 
O'Flaherty  v.  Union  R.  R.  Co.  571,  572 

O'Gara  f.'Eisenlohr  168 

Ogden  V.  Prentice  82,  83 

Oglander  v.  Baston  120,  127,  142 

Oglesby  v.  Hall  250 

O'Hara  v.  Shepherd  471,  477,  497 
Ohio,  &c.,  R.  R.  Co.  v.  Ilammersley   644 


R.  R.  Co. 

595 

O'Keefe  v.  Casey 

432,  433 

Newton  v.  Roe 

73 

O'Kill  V.  Campbell 

207 

Nichol  V   Martyn 

626,  632 

Oldin  V.  Samborn 

515 

Nichols  V.  Allen 

885 

Oliver  v.  Houdlet 

457,  464,  535 

V.  O'Neill 

144 

V.  McClennan 

563 

Nicholson  v.  Spencer 

457 

I'.  McDuffie 

554 

V.  Wilborn    87 

426 

654,  593 

V.  Woodroffe 

641 

Nicholson's  Appeal 

430, 

431,  470 

Olivier,  Succession  of 

366 

Nickerson  v.  Easton 

368 

O'Neal  V.  Robinson 

235 

V.  Howard 

605 

O'Neil's  Case 

430 

Nickson  v.  Brohan 

636 

O'Neill  V.  Cole 

270,  275 

Nicoll,  Matter  of 

410 

Opdyke's  Appeal 

381 

V.  Greaves 

608 

Ord'y.  Blackett 

451 

Nightingale  v.  Withington 

345,  370, 

Oriental  Bank  v.  Haskins 

282 

371, 

535,  537 

Orland's  Case 

144 

Niller  v.  Johnson 

282 

Orvis  V.  Kimball 

679 

Nimmo  c.  Walker 

622 

Osborn  v.  Allen 

884 

Nims  V.  Bigelow 

233 

r.  Gillett 

631 

Nix  i\  Bradley 

227 

V.  Morgan 

129,  131 

Noble  V.  Enos 

259,  260 

Osborne  v.  Edwards 

130,  145,  151 

Ivi 


TABLE   OF   CASES   CITED. 


Osborne  v.  Van  Horn 
Osgood  V.  Breed  "»8, 

Oswald  V.  Broderick 
Oswell  V.  Probert        129,  130,  131, 
Ottnian  v.  Moak 
Outcalt  V.  Van  Winkle 
Overliolt  V.  Ellswell 
Overseers  of  Alexandria  v.  Over- 
seers of  Betblebem 
Overton  v.  Banister 
V.  Beavers 
Owen  V.  Bryant  387, 

V.  Cawley 
V.  Gooch 

V.  Peebles  475, 

V.  White 
Owens  V.  Chaplain 
V.  Cowan 
I'.  Dickenson 
V.  Walker 
Oxford  V.  Peter 
Oxnard  v.  Swanton 
Oxley  V.  Tryon 
Ozard  u.  Darnford  ' 


327 
377 
582 
132 
584 
124 
102 

346 
568 
456 
388 
230 
628 
500 
328 
605 
486 
221 
549 
638 
249 
543 
5,98 


P. 

Packard  r.  Arellanes 
Packer  v.  Windham 
Paddock  r.  Wells 
Page  V.  Defries 
V.  Marsh 
V.  Page 
Paine  v.  Hunt 
Palmer  v.  Davis 

V.  Miller  538, 

V.  Oakley        418,  42i,  473, 
V.  Portsmouth 
V.  Trevor 
Palmes  v.  Danby 
Panand  v.  Jones 
Pancoast  v.  Burnell 
Parish  of  St.  Andrew  v.  De  Breta 
Park  V.  Hopkins  ^     ^ 

Parke  i'.  Kleeber  78,  <9, 

V.  Barron 
Parker  ;;.  Baker 

V.  Brooke  189,  197, 

V.  Elder 
V.  Kane 
V.  Lincoln 
V.  Parker 

V.  Simonds  232, 

V.  Way 
Parkes  v.  White  198, 

Parks  V.  Cushman 
Parmelee  i'.  Smith 
Parnell,  Goods  of 
Parsons  v.  Ely 
V.  Hill 
V.  Parsons 
V.  People 


16 
140 

28 

637 

605 

153 

233 

238 

585 

486 

645 

116 

467 

212 

215 

321 

102 

236 

35 

536 

'226 

542 

237 

416 

30 

248 

306 

224 

116 

349 

408 

265 

536 

129 

67 


Parsons  v.  Trask 
Parteriche  v.  Powlet 
Parton  v.  Hervey 
Partridge  v.  Stocker 
Paschail  v.  Hall 

v.  Thurston 
Passenger  R.R.  Co.  i-.  Stutler 
V.  Young 
Patchett  V.  Holgate 
Patchkin  v.  Cromack 
Paterson  v.  Gandasequi 

V.  Wallace 
Patnote  v.  Sanders 
Pattee  v.  Harrington 
Patten  v.  Rea 
Patterson  v.  Flanagan 
V.  Gaines 
V.  High 
Patton  V.  Hassington 
V.  Stewart 
V.  Thompson 
Paul  V.  Children 
V.  Hummel 
Paul  Neal's  Case 
Paulding's  Will 
Paulet  V.  Delavel 
Paulmier  v.  Erie  R.  R-  Co 
Payne  v.  Scott 
V.  Stone 
Peacock  v.  Peacock 

V.  Pembroke 
Peake  v.  La  Baw 
Pearce  v.  Olney 

V.  Spierin 
Pearson  v.  Darrington 

I'.  McMillan 
Peaslee  v.  McLoon 
Peck  V.  Braman 

V.  Brummagim 
V.  Hendershott 
V.  Walton 
Peckhara  v.  Hadwen 
Pedley  i-.  Wellesley 
Peiffer  i:  Lytle 
Peigne  v.  Snowden 
Pell  V.  Cole 
Pemberton  i'.  Johnson 
Pence  v.  Dozier 
Pendleton  r.  Pomeroy 
Pendrell  v.  Pendrell 
Penfold  V.  Mould 
Penleaze.  Ex  pcrte 
Penn  v.  Heisey 

V.  Whitehead 
Pennington  v.  Fowler 
Pennsylvania  Co.  v.  Foster 
Pennsylvania,  &c.,  Co.  v.  Neel 


611 

178 

83 

246 

285 

138 

574 

641 

306 

538 

628 

644 

623 

108 

639 

284 

33,  48,  308 

162 

330 

236,  288 

484,  511 

387 


361 
242 
55 
226 
643 
457 
473 
620 
120,  122 
232 
325 
205 
79,  83,  95 
502,  507 
64 
498 
16 
238 
216 
185 
64 
286 
279 
234 
238 
360 
185 
305,  306 
226,  284 
323 
516 
232,  246,  247 
443 
227 
285 
Pennsylvania  R.  R.  Co.  v.  Bantom  3o2 
V.  Keller      3o3 
V.  Kelly       361 
Penrose  i^.  Curren  566 

Pentz  V.  Simonson  230,  2.->o 

People  V.  Board  of  Education  318 


TABLE   OF   CASES   CITED. 


Ivii 


People  V.  Boice 

341,  406 

PhilUps  V.  Graves 

230 

V.  Brooks 

341 

V.  Green         539 

,  546 

584,  586 

V.  Byron 

438,  439 

V.  Gregg 

48 

V.  Chegaray 

340 

V.  Hassell 

184 

V.  Circuit  Judge 

488 

V.  Phillips 

487 

V.  Dean 

522 

V.  Wooster 

282 

V.  Gates 

605 

Phillipson  v.  Hayter 

78,  81,  82 

V.  Kearney 

409,  411,  413 

Phorhe  v.  Jay 

622 

V.  Kendall 

524 

Picard  v.  Hine 

221 

V.  Kling 

384,  406 

Pickens  v.  Hill 

160 

V.  Mercein       339, 

341,  842,  343, 

Pickering  v.  De  Rochemont 

506 

849 

V.  Pickering 

98 

V.  New  York 

598 

Pickett  V.  Buckner 

185 

V.  Olmstead 

833,  339 

Picklor  V.  State 

540 

V.  Overseers 

306 

Pidgin  V.  Cram 

96,  327 

V.  Pillow 

605 

Pierce,  Matter  of 

400 

V.  Randolph 

524 

V.  Irish 

497,  514 

V.  Reagle 

67 

V.  Waring 

512 

V.  Slack 

32 

Pierson  v.  Smith 

126,  216 

V.  Townsend 

524 

Pike  V.  Raker 

100 

213,  287 

V.  Turner 

350 

V  Collins 

126 

V.  Wilcox  834,  416 

,  421,  449, 451 

Pilkington  v.  Scott 

610,  618 

V.  Winters 

60 

Pillow  V.  Bushnell 

107 

Pepper  v.  Stone 

428,  438,  439 

Pim  V.  Downing 

439 

Perkins  v.  Cortrell 

144,  216 

Pina  V.  Peck 

310 

V.  Elliott 

230 

Pingree  v.  Goodrich 

25 

I'.  Finnegan 

430 

Pinkston  v.  McLemore 

248 

V.  Smith 

629 

Pinney  v.  Fellows 

201 

205,  279 

f.  State 

102 

Pitcher  v.  Laycock 

539 

587,  591 

Perlinaw  v.  Phelps 

847 

V.  Turin  Plank  Road  Co.      574 

Perrin  v.  Wilson 

553 

Pitt  V.  Pitt 

141,  165 

Perry  v.  Brainard 

■    424 

V.  Smith 

30 

V.  Hindle 

148 

Pitts  V.  Cherry 

410 

V.  Perry 

372 

Pittsburgh,    &c.,   Passen 

ger   R.   R. 

r.  Rieketts 

643 

Co.  V.  Donahue 

641 

V.  Simpson,  &c.,  Co 

619,  623 

Pixler  V.  Nichols 

621,  626 

V.  Whitehead 

387 

Place  V.  Rliem 

282 

Perryman  v.  Burgster 

595,  597 

Planche  v.  Collnirn 

619 

Person  v.  Chase 

543,  561 

Piatner  v.  Patehin 

72,73 

Peru  V.  French 

802 

Plimmer  v.  Sells 

100 

Peters  v.  Fleming 

548,  549,  555 

Plotts  V.  Rosebury 

330 

V.  Fowler 

214,  238 

Plowes  V.  Bossey 

306 

V.  Lord 

632 

Plumer  v.  Lord 

248 

Petersham  v.  Dana 

384 

Plummer  i-.  Wobb 

345 

853,  354 

Peterson  v.  Laik 

587 

Poindexter  v.  Jeffries 

134,  282 

Petre,  Ex  parte 

826 

Pomeroy  v.  Manhattan, 

&c.. 

Ins. 

Pettingill  v.  Butterfield 

126 

Co. 

289 

Pettus  V.  Clauson 

478 

Pond  V.  Curtiss 

462.  471 

V.  Sutton 

475 

Ponsford  v.  Johnson 

49 

Petty  V.  Anderson 

100,  245 

Pool  V.  Blakie 

215,  257 

V.  Roherts 

588,  591 

V.  Everton 

93 

Peyton  v.  Smith 

408 

V.  Gott 

343 

Pilaris  V.  Leachman 

143 

V.  Morris 

129 

Phelps  V.  Culver 

605 

Pooley  V.  Webb 

207 

V.  Phelps 

115 

Poor  ('.  Ilazleton 

124 

V.  Wait 

630 

Pope  V.  Jackson 

483 

V.  Worcester 

551,  555 

V.  Sale 

383 

Philbrooks  v.  McEwen 

154,  179 

Porch  I'.  Fries              149, 

154, 

215,  426 

Phillipi  V.  Commonwealth 

386 

Porcher  v.  Daniel 

257, 

258,  259 

Phillips,  Ex  parte 

467, 481 

Porter  i'.  Bank  of  Rutland 

202,  204 

V.  Allen 

806,  308 

V.  Bleiler 

606 

V.  Davis 

457,  500 

V.  Bobb 

93 

V.  Foxall 

625 

V.  Mount 

104 

Iviii 


TABLE   OF   CASES   CITED. 


Posey  V.  Posey 

526 

Poston  V.  Young 

415 

Potingcr  v.  Wightman 

313 

412 

452 

Pott  V.  Clcgg 

113 

Potter  V.  Faulkner 

644 

V.  Hiscox 

474 

502 

V.  State 

492, 

493 

502 

Potts  V.  Cogdell 

267 

Poultney  v.  Glover 

372 

V.  Randall 

503 

Poulton  V.  South- Western  R.  R.  Co 

639 

Powell  V.  Boon 

476 

V.  Cleaver 

337 

396 

V.  Cobb 

38 

V.  Evans 

473 

V.  Felton 

151 

V.  Gott 

541 

V.  Jones 

505 

V.  North 

473 

V.  Powell 

55,56 

Power  V.  Lester 

275 

Powes  V.  Marshal 

106, 

113 

Prater  v.  Hoover 

234 

Prather  v  McDowell 

185 

Pratt  V.  Battels 

154 

V.  Jenner 

300 

V.  McJunkin 

493, 

502, 

513 

V.  Wright 

446, 

490 

Pray  v.  Gorhain 

349 

Prebble  v.  Boghurst 

266 

Preble  v.  Longfellow 

457 

Prentice  v.  Decker 

349 

Prentiss  v.  Ledyard 

607, 

615, 

623 

Prescott  V.  Brown 

112 

V.  Fisher 

69 

V.  Norris 

567 

Presley  v.  Davis 

324 

Price  V.  Duggan 

595 

V.  Hewett 

568 

V.  Strange 

169 

Prichard  v.  Ames 

190 

V.  Prichard 

59 

Prickett  v.  Prickett 

372 

Pride  v.  Bubb 

293 

Priestley  v.  Fowler 

642 

Pritchard  v.  Hitchcock 

626 

Probate  Court  v.  Hibbard 

445 

V.  Niles 

116, 

121 

V.  Strong 

490 

Proctor  V.  Sears 

577, 

581, 

584 

Prodgers  v.  Langham 

282 

Prole  V.  Soady 

300 

Proper  v.  Cobb 

248 

Proudfoot  V.  Poile 

595 

Proudley  (;.  Fielder 

194 

Prout  V.  Roby 

218 

Prouty  V.  Edgar 

559, 

560 

570 

Pryor  v.  Hill 

132 

Pugh,  Ex  parte 

133 

225 

Pulbrook,  In  re 

337 

Pulliani  V.  PuUiam 

205 

Pulsford  V.  Richards 

268 

Purdew  v.  Jackson      124, 

126, 

130, 

157 

Parsley  v.  Hayes 

485 

V.  Hays 

686 

Pusey  V.  Harper 

282 

Putnam  v.  Bicknell 

288 

V.  Putnam 

49 

V.  Ritchie 

471 

i\  Town 

372 

Pybus  V.  Smith 

155,  188,  197,  198 

Pye,  Ex  parte 

273 

Pyke  V.  Pyke 

134,  274 

Pyle  V.  Cravens 

640 

Q. 

Queen  v.  Carnatic  R.  R.  Co.  199 

V.  Lumley  34 

Quidort  v.  Pergaux  243 

Quigley  v.  Graham  216 

Quincy  v.  Quincy  92 

Quinlan  v.  Quinlan  268 


R. 

R.  V.  Pucklechurch  607, 

Rabb  u.  Aiken  145* 

V.  Griffin  164 

Rabe  v.  Hanna  67 

Racouillat  v.  Raquena  497 

Ragan  v.  Simpson  155 

Ragland  v.  Justices  603 

Railroad  v.  Hanning  645 

Railroad  Co.  '■.  Harris  149 

Rainsford  v.  Rainsford  586 

Ralston,  Ex  parte  461 

V.  Lahee  559 

Ramsay  v.  Ramsay  416,  430,  450 

V.  Richardson  264 

Ramsdale  v.  Craighill  120 

Ramsden  v.  Smith  274 

Rancliffe  v.  Parkyns  274 

Randall  v.  Lunt  282 

V.  Sweet  555,  556 

Raney  v.  Rainey  234 

Rankin  v.  Kemp  462 

Ransom  v.  Nichols  160,  236 

Ransome  v.  Burgess  325 

Rapalje  v.  Norsworthy  514 

Ratcliff  V.  Wales  65 

Ratcliffe  v.  Dougherty  216 

Rathbun  v.  Colton  600 

Rawlings  v.  Bell  618 

Rawlins  v.  Rounds  106 

V.  Vandyke  91,  96 

Rawson  v.  Pennsylvania  R.  R.  Co.  172 

Ray,  Ex  parte  190 

V.  Adden  79 

V.  Haines  661 

Raybold  v.  Raybold  243 

Raylon  v.  Tongue  261 

Raymond  v.  Loyl        327,  329,  330,  831 

V.  Sawyer  462 


TABLE   OF   CASES   CITED. 


lix 


Raymond  v.  Minton  605 

Rea  V.  Durkee  90,  93 

V.  Tucker  64 

Read  v.  Beazley  294 

V.  Earle  233 

V.  Drake  416 

Reade  v.  Armstrong  273 

V.  Livingston    201,  265,  279,  282 

Reading  v.  Mullen  250 

Ready  v.  Bragg  282 

V.  Hamm  179 

Reakert  v.  Sandford  100 

Ream  v.  Watkins  370,  371 

Reciprocity  Bank,  Matter  of      117,  217 

Reddie  v.  Scoolt  359 

Redfield  v.  Buck  282 

Redman  i'.  Chance  421 

Reed  u.  Batchelder  536,  538 

V.  Bosliears  590 

V.  Legard  94 

V.  Moore  90 

V.  Ryburn  500 

V.  Williams  360 

Rees  V.  Keith  115,  120,  122 

Reese  v.  Chilton  93 

Reeve  v  Hicks  177 

V.  Marquis  of  Conyngham       94 

Reeves  v.  Reeves  34 

Regina  v.  Bleasdale  646 

V.  Brooks  102 

V.  Chadwick  28,  33 

V.  Clark  449 

V.  Clarke  317,  342 

V.  Collingwood  385 

V.  Daniel  631 

V.  Edwards  333 

V.  Howes  342 

V.  Inhabitants  of  Wendron     77 

V.  Kelly  60 

V.  Lord  536,  537,  543 

V.  Millis  37,  42,  43,  44 

V.  Kicholas  528 

V.  Orgill  36 

V.  Phillips  524 

V.  Plummer  62 

V.  Preston  608 

V.  Ravenstonedale  608 

V.  Robinson  102 

V.  Smith  342,  617 

V.  White  333 

?;.  Williams  66 

Reid  }\  Laing  42 

Reinhart  v.  Miller  275 

Renaux  v.  Teakle  78,  84,  85 

Rennie  v.  Ritchie  187 

Resor  v.  Rcsor  116,  266,  286 

Reuncclcer  tJ.  Scott  215 

Revel  V.  Revel  116 

Revett  V.  Harvey  513,  514 

Rex  V.  Barton  614 

V.  Bcttesworth  252 

V.  Bra)Tipton  50 

V.  Birmingham  46 


Rex  V.  Brazier  527 

V.  Burton-iipon-Trent  38 
V.  Coggeshall  608 
V.  Delarel  337 
V.  Flintan  77,  92 
V.  French  113 
V.  Great  Bowden  608 
V.  Greenhill  337,  339,  342,  449 
V.  Hodnett  46 
V.  Hopkins  382 
V.  Hoseason  638 
V.  Huggins  646 
V.  Inhabitants  of  Sourton  306 
V.  Inhabitants  of  Wigston  560 
V.  Isley  337 
V.  Killingholme  608 
V.  Locker  66 
V.  Luffe  305 
V.  Martha  Hughes,  co?-am  Thom- 
son 102 
r.  MinshuU  38 
I'.  IMoseley  382 
V.  Mountsorrel  561 
V.  Munden  321,  365,  366 
V.  North wingfield  608 
V.  Oakley  893,  471 


V.  Pierson 

V.  Pike 

V.  Reading 

V.  Roach 

V.  Rotherfleld  Grays 

V.  Saunders 

V.  Shinfield 

V.  Soper 

V.  Sow 

V.  Standon  Massey 

V.  St.  Helen's 

V.  Sutton 

V.  Twyning 

V.  White 

V.  Williams 

V.  Wilmington 

V.  Woodhurst 

V.  Worfield 
Reynard  v.  Spence 
Reynolds  v.  Lansford 
V.  Reynolds 
V.  Sweetser 
V.  Walker 
Rhea  v.  Rhcnner 
Rhett  V.  Martin 
Rlioads  V.  l^hoads 
Rice  V.  Ilofiinan 

V.  Lumley 

I-.  Rice 

V.  Thompson 
Rich  V.  Cockell 
Richards,  Goods  of 
V.  Burden 
V.  Hay  ward 
V.  Lewis 
?'.  Richards 
Richardson  v.  Boright 


424 
527 
65 
368 
367 
617 
620 
382 
608 
608 
608 
393 
811 
528 
528 
368 
608 
607 
185 
285 
37 
90,  822 
477,  496 
295 
598 
598 
144 
300 
47 
160 

189,  219,  253 

261 

64 

625 

269 

60, 115 

538,  582,  583 


Ix 


TABLE   OF   CASES  CITED. 


Richardson  v.  Boynton  490, 

V.  Dagfcett 
V.  Du  Bois 
V.  Fonts 
V.  Hittle 
V.  Kimball 
V.  Linney 

V.  Merrill  218,  245, 

V.  Richardson 
V.  Smalhvood 
V.  Stodder 
Richart  v.  Ricliart 
Richmond  v.  Tibbies 
Ricker  v.  Ham 
Ridgely  v.  Crandall 
Rider  i'.  Hulse  242, 

Rideout's  Trusts,  fn  re 
Ridout  V.  Bristow 

V.  Earl  of  Plymouth      174, 
Ridgway  v.  English 

V.  Hungerford  Market  Co 
614,  615, 
Riley  v.  Byrd 

V.  Jameson 

V.  Mallory  543, 

V.  Riley  140,  142, 

Rimell  v.  Sampayo 
Rippon  V.  Dawding 
Risdon,  Goods  of 


Ritter  v.  Ritter 
Rivers  v.  Durr 
V.  Gregg 
V.  Thayer 
Rives  r.  Sneed 
Roadcap  v.  Sipe 
Roach  V.  Garvan 
i".  Jelks 
V.  Quick 
Robalina  v.  Armstrong 
Robbins  v.  Cutler 
V.  Eaton 
V.  Mount 
Roberts,  Matter  of 
V.  Adams 
V.  Dixwell 
I'.  Place 
V.  Polgrean 
V.  Spicer 
V.  Smith 
V.  Stanton 
V.  Wiggin 
Robertson  v.  Cowdry 
V.  Norris 
V.  Robertson 
V.  State 
Robinson  v.  Burton 
V.  Cone 
V.  Gee 
V.  Huffman 
V.  Miller 
V.  Nahon 
V.  Robinson 
V.  Weeks 


234, 


426,  429,  432, 
69, 

584, 


538, 


288, 


166, 


378,  478, 
536, 


491 
118 

94 
360 
153 
629 
513 
246 
471 
278 
214 
185 
235 
281 
536 
243 
306 

74 
175 
372 

622 
381 
349 
546 
266 
636 
266 
162 
238 
559 
554 
267 
314 
104 
449 
500 
559 
384 
543 
588 
564 
500 
121 
194 
135 
138 
191 
643 
596 
587 

42 
146 
294 

43 
360 
572 
178 
231 
185 

86 
508 
543 


Robinson  v.  Wheelwright  199 

V.  ZoUinger  408,  429 

Robison  v.  Gosnold  92,  93 

V.  Robison  66 

Robson  V.  Osborn  593 

Roby  V.  Boswell  216 

Roche  V.  Cliaplin  466 

V.  Hart  478 

Rochfort  V.  Fitzmaurice  272 

Roe  V.  Deming  355 

Rogers,  In  re  295 

V.  Acaster  126 

V.  Boyd  215 

V.  Brightman  ^65 

V.  Dill  481,  487 

V.  Hinton  261 

V.  McLean  445 

V.  Rogers  201 

V.  Smith  351 

V.  Steele  562 

V.  Ward  230,  237 

Rohrer  v.  Morningstar  597 

Rooke  V.  Lord  Kensington  273 

Roosevelt  v.  ElUthorp  162 

Root  V.  Stevenson's  Adm'r  567 

Roper  V.  Roper  232 

Rose  V.  Sanderson  215 

Ross  V.  Adams  164 

V.  Cobb  471 

V.  Gill  471 

V.  Winners  72 

Ross's  Trust,  In  re  198 

Rotch  V.  Miles  99 

Roundtree  v.  Thomas  215 

Roundy  v.  Thatcher  561,  562 

Routh  V.  Howell  474 

Routledge  r.  Carruthers  304 

Rowe  I'.  Chicheste  139 

V,  Hopwood  577 

V.  Jackson  133 

V.  Smith  215,  230 

Howley  f .  Adams  152 

V.  Rowley  293 

V.  Unwin  227 

Rowney's  Case  144 

Rover's  Appeal  467,  470 

Royston  v.  Royston    157,  457,  498,  500 

Ruddock  V.  Marsh  98 

Ruding  V.  Smith  49,  50 

Rumfelt  V.  Clemens  235,  236 

Rumney  v.  Reyes  86,  322 

Rundel  v.  Keeler  545,  549 

Runkle  v.  Gale  497 

Runnells  v.  Webber  185 

Ruscombe  v.  Hare  155,  178 

Rush  V.  Vought  232,  368 

Russ  V.  George  119 

Russel  V.  Russel  481 

Russell  V.  Brooks  112 

V.  Fay  484 

I'.  Irby  639 

Ruttinger  v.  Temple  386 

Rvan  V,  Fowler  643 


TABLE   OF   CASES   CITED. 


Ixi 


Ryan  v.  Madden 

107 

Ryder,  In  re 

329 

V.  Bickerton 

224 

V.  Hulse 

217,  218, 

236 

V.  Robinson 

165 

V.  Wombwell 

549 

550 

Ryland  v.  Smith 

118, 

122 

Sackett's  Estate  400 

Sadler  v.  Robinson  591 

Sale  V.  Crutciifield  306 

V.  Saunders  144,  145 

Salisbury  v.  Van  Hoesen  602 

Sallee  v.  Arnold  113 

Salter  v.  Howard  632 

Saltniarsh  v.  Candia  108 

Sahvay  v.  Salway  134 

Sammis  v.  McLaughlin  249 

Sampley  v.  Watson  231 

Sams  V.  Stockton  549 

Sanborn  v.  Batchelder  257 

Sanders  v.  Rodney  293 

Sanderson  c.  Robinson  273 

Sandiland,  E.r  parte  61 

Sands  v.  Child  629 

Sanford  i'.  Augusta  11# 

V.  Lebanon  321 

V.  Sanford  289 

Sanger r.  Sanger  196 

Sapp  V.  Newsora  42 

Sargeant  v.  Fuller  185 

Sargent  v.  Mathewson  354 

Sartoris,  Goods  of  445 

Sasseer  i'.  Walker  503 

Satterthwaite  v.  Emley  265 

Saul  V.  His  Creditors  521 

Saunders  v.  Saunders  59 

Saunderson  i'.  Bell  635 

V.  Marr  540 

Savage  v.  Benham  122 

V.  Davis  76,  100 

V.  Dickson  462 

V.  O'Neii  68,  217 

V.  Itobertson  388 

V.  Walthew  626 

V.  Winchester  234 

Savery  v.  King  375 

Saville  v.  Sweeney  107 

Sawyer  v.  Cutting  100 

V.  Fernald  232 

V.  Knowles  506 

Scales  I'.  ]Maude  284 

Scammel  r.  Wilkinson  253,  255 

Scarborough  v.  Watkins  154 

Scarnian  v.  Castell  617 

Scarpellini  v.  Acheson  115,  118 

Scawen  v.  Blunt  114 

Schaffer  v.  Renter  286 

Schenk  v.  Strong  565 

Schindel  v.  Schindel  90 


Schlosser's  Appeal  75 

Schmidt  v.  Milwaukie,  &c.,  R.  R. 

Co.  571,  572 

Schmitheinier  v.  Eiseman  154,  570,  589 

Schneider  v.  Hosier  216 

V.  Starke  144 

Schoch  V.  Garrett  378 

School  Directors  v.  James  452 

School  District  v.  Bragdun  563 

Schullhofer  v.  Metzger  79 

Schumpert,  Ex  parte  340 

Schurman  v.  Marley  68 

Schuyler  r.  Hoyle  116, 120 

Schwartz  i'.  Saunders  234 

Scidmore  v.  Smith  632 

Scott  V.  Buchanan  536,  586 

i\  Freeland  511,  516 

V.  Gamble  135 

V.  Hi.x  122 

V.  Mayor  of  ^lancliester  611 

V.  Paquet  30 

V.  Scott  234,  238 

V.  Slmfeldt  35,  38 

V.  Spashett  132 

V.  State 

V.  Watson 

Scott's  Account,  In  re 

Scott's  Case 

Scrimshire  i'.  Scrimshire 
Seaborne  v.  Maddy 
Seaman,  Matter  of 
I'.  Duryea 
Seager  v.  Sligerland 
Seagrave  v.  Seagrave 
Sears  v.  Terry 
Seaton  v.  Benedict 
Seaver  v.  Morse 
Seavey  v.  Seav^ 
Sebastian  r.  Bryan 
Sedgwick  v.  Walkins 
Selby  I'.  Selby 
Selden's  Ajipeal 
Sellars  v.  Kinder 
Sellen  v.  Norman 
Selph  V.  Howland 
Semple  v.  Morrison 
Senseman's  Appeal 
Serle  v.  St.  Eloy 
Serres  v.  Dodd  107 

Sessions  v.  Kell  410 

Seward  v.  Jackson  374 

Sexton  V.  Wheaton  279 

Seymour  v.  Greenwood  637 

Shaddock  v.  Clifton  215 

Shafi'ner  v.  Briggs  480 

Sliafher  v.  State  33 

Shallenberger  v.  Ashworth  151 

Shanck  v.  Northern,  &c.,  R.  R.  Co.  645 
Shanks  v.  Seanumds  483 

Shannon  v.  Canney  232 

Shartzver  r.  Love  76 

Sharp  V.  Burns  215 


28 
564 
503 
441 

47 
329 
494 
496 
359 
274 
412,  413,  421 

82 
623 
374 
492 

65 
423 
350 
360 
617,  021 
234 
540 
448,  506 
528 


V.  Cosserat 


274,  279 


Ixii 


TABLE   OF   CASES   CITED. 


Sharp  V.  Cropsey 
V.  Maxwell 
V.  Wickliffe 
Sharpe  v.  Foy  185, 

Sharrod  v.  London  &  North- West- 
ern R.  R.  Co. 
Shattock  r.  Siiattock 
Shaw,  Succession  of 

V.  Attorney-General 
V.  Coble 
V.  Coffin 
V.  Emory 
V.  Gould 
V.  Partridge 
V.  Reed 
V.  Shaw 
V.  Steward 
V.  Thompson 
Shearman  v.  A  kins 
V.  Angel 
Sheldon  v.  Bradley 
V.  New'ton 
V.  Patterson 
Shelley  v. 


Westbrooke 
Shelton  v.  Pendleton 

V.  Springett 
Shenk  v.  Mingle 
Shepard  v.  Pratt 
Shepardson  v.  Rowland 
Shepherd  v.  Bevin 
V.  P^vans 
V.  ^L'lckoul 
Sheppard  v.  Starke 
Sherman  v.  Ballou 

V.  Brewer 

V.  Champlain  Trans.  Co 

V.  Elder 

V.  Rochester  R.  B.  Co. 

V.  Sherman 
Sherrington  v.  Yates 
Sherry  i-.  Sansberry 
Slierwood  v.  Sherwood 

V.  Smith 
Shields  v.  Keys 
Shipman  v.  Horton 
Shipp  V.  Bowman 
V.  Wheeless 
Shirley  v.  Shirley 
Shirley,  Ann,  Ex  parte 
Shock  V.  Shock 
Shoemaker  v.  Kunkle 
ShoUenberger's  Appeal 
Shores  v.  Carley 
Short  V.  Moore 
Shrewsbury  v.  Shrewsbury 
Shropshire  v.  Burns 
Sliroyer  v.  Richmond 
Shumaker  v.  Johnson 
Shuman  v.  Reigart 
Shuster  v.  Perkins 
Shute  V.  Dorr 
Shuttlesworth  v.  Hughey 


378 
217 
234 
264 

640 
223,  261 
445 
299 
500 
666 
100 
49 
143 
638 
471 
140 
94 
439 
388 
185 
586 
185 
305,  306 
336 
79 
329 
386 
281 
185 
374 
462 
87 
72 
506 
507 
619 
249 
642 
171 
118,  124,  126 
516 
216 
377 
235,  238 
546,  591 
227 
486 
113,  207 
220 
274 
100 
602 
164 
121 
165 
580 
404,  490 
156 
125 
490 
346,  369 
595 


264, 


510, 


Sibbett  V.  Ainsley 
Sichel  V.  Lambert 
Sidney  v.  Sidney 
Sikes  V.  Johnson 

V.  Smith 
Siles  V.  Fleming 
Sillings  V.  Bumgardner 
Silsby  V.  Bullock 
Simmons  v.  Almy 

V.  McEIwain 
V.  Wilmott 
Simms  v.  Hervey 

V.  Norris 
Simonin  v.  Mallac 
Simons  v.  Howard 
V.  Monier 
Simpson  v.  Alexander 

V.  Graves 
Sims  V.  Renwick 
V.  Rickets 
V.  Spalding 
Simson  v.  Jones 
Singer  v.  McCormick 
Singleton  v.  Love 
Sinklear  v.  Emert 
Sir  Edward  Turner's  Case 
Siter  V.  Jordan 

V.  McClanachan 
Siter's  Case 
Skarf  r.  Soulby 
Skelton  v.  Ordinary 
Skillman  v.  Skillman  112,  243 
Skinner,  Ex  parte 
Skottowe  V.  Young 
Slanning  v.  Style 
Slattery  v.  Smiley 
Slaughter  v.  Cunningham 

f.  Cupepper 
Slawson  v.  Loring 
Slaymaker  v.  Bank 
Sleath  V.  Wilson 
Sledge  V.  Clopton 
Sleeman  v.  Wilson 
Sleigh  V.  Strider 
Sleight  V.  Read 
Sloan  V.  State 
Sloper  V.  Cottrell 
Slowcombe  v.  Glubb 
Slowman  v.  Perryclear 
Smalley  v.  Anderson 
Smalman  v.  Agborow 
Smart  v.  Comstock 
Smiley  i'.  Smiley 
Smilie's  Estate 
Smith  V.  Allen 

V.  Atwood 
V.  Bate 
V.  Bean 
V.  Boquet 
V.  Bowen 
V.  Chappell 
I'.  Chirrell 
V.  Davis 


83 


265 

131, 

511, 
137, 
151, 

263, 

313, 
242, 


115, 

638, 


74, 
115, 


430, 


307 
44 

274 
564 
490 
266 
462 
257 
462 
,282 
617 
155 
465 
47 
193 
641 
598 
,279 
445 
285 
151 
529 
613 
516 
555 
140 
124 
154 
125 
278 
467 
282 
337 
314 
286 
430 
543 
185 
285 
117 
639 
204 
388 
310 
217 
646 
194 
269 
208 
167 
148 
243 
215 
125 
181 
126 
432 
462 
16 
675 
263 
264 
79 


TABLE   OF   CASES   CITED. 


Ixiii 


Smith  V  Derr 
V.  Dibrell 
V.  Evans 
V.  Floyd 
V.  Henry 
V.  Hewett 
V.  Kane 
V.  Kelly 
V.  Knovrlton 
V.  Low 
V.  Moore 
V.  Oliphant 
V.  Osborne 
V.  Perry 
V.  Philbrick 
V.  Sackett 
V.  Silence 
V.  Smith   185,  347,  376, 

V.  Starr 

V.  Thompson 

V.  Webster 

V.  Woodworth 

V.  Young 
Smith's  Appeal 
Smodt  V.  Lecatt 
Smout  V.  Ilberry 
Smyth  V.  State 
Snediker  v.  Everingham    346 
Snell  V.  Elam 
Snelson  v.  Corbet 
Snider  v.  Ridgeway 
Snodgrass'  Appeal 
Snook  V.  Sutton 
Snover  v.  Blair 
Snovvden  r.  Lindsley 
Snowhill  V.  Snowhill 
Snyder  v.  Snvder 

V.  Webb 
Soady  v.  TurnbuU 
Somers  v.  Pumphrey 
Somerville  v.  Somerviile 
Somes  V.  Skinner 
Soule  V.  Bonney 
SouUier  i'.  Kern 
Soutliall  V.  Clark 
Southard  v.  Plummer 
Southerland  v.  Southerland 
Southern  v.  How 
Soutlnvick  v.  Southwick 
Soutlnvorth  c.  Packard 
Spain  V.  Arnott 
Spalding  v.  Brent 
Sparhawk  v.  Allen 
V.  Buel 

V.  Buell's  Adm'r 
?.'.  Sparhawk's  Ex' 
Sparkes  r.  Bell 
Spauldiug  V.  Day 
Spaun  V.  Collins 

V.  Jennings 
Spear  v.  Cummings 
V.  Spear 


313 
474 
691 
596 
214 
214 
129 
581 
371 
684 
267 
556 
274 
154 
502 
585 
295 

377,  476, 

477,  517 
207 

249,  619 
641 
49 
653 
457 
301 

180,  628 

46 

,  349,  3G9 

514 

174,  175 
75 
473 
471 
89 
122 
446 
216 
263 
106 
154 
312 
462 
36 
577 
514 

217,  283 

266 

637 

54 

109 

612,  622 
614 
469 
519 
493 
r  324 

73,  223 
218 
417 
207 
355 
478 


Spear  v.  Ward  228 

Speight  I'.  Kniglit  421,  431 

V.  Oliviera  359 

Spence's  Case  411,  415 

Spencer  v.  Carr  539 

V.  Earl  of  Chesterfield  427, 428 

V.  Lewis  144 

V.  Spencer  269,  270 

t'.  Storrs  100 

V.  Tisue  100 

Spier's  Appeal  295 

Spinning  u.  Blackburn  234 

Spirett  V.  Willows  133 

Spotswood  V.  Barrow  613,  615 

Sprague  v.  Waldo  88 

Spratt  V.  Spratt  341 

Spring  V.  Woodworth  456,  457 

S[)ringer  v.  Berry  235,  238 

Sproule  V.  Botts  595 

Square  v.  Dean  226 

Squib  V.  Wyn  162 

Squier  v.  HydlifF  561 

Squire  v.  Whipple  605 

St.  George  v.  St.  Margaret  311 

V.  Wake  269,  270 

St.  John  V.  St.  John  292 

St.  Nicholas  v.  St.  Bodolph  605 

Stables,  In  re  325 

Stacker  v.  Whitlock  235 

Stackpoie  v.  Beaumont  617 

Staley  v.  Barhite  107 

Stall  V.  Macalester  486 

Stammers  !'.  Macomb  83 

Standetord  v.  Devol  115 

Stanley  v.  Stanton  67 

Stanley's  Appeal  474 

Stansbury  i'.  Bertrow  370 

Stanton  v.  Bell  614 

V.  Hall  125,  131 

V.  Kirsch  214 

V.  Willson  822,  328,  545 

Stanwood  v.  Stanwood  117 

Stapleton  v.  Croft  67 

Starbird  i'.  Moore  696 

Stark  V.  Gamble  477,  514 

Starke  v.  Harrison  145 

Starkey  v.  Starkey  54 

Starkie,  Ex  parte  459 

Starr  t\  Peck  310 

V.  Wright  559 

Starrett  v.  Jameson  498,  500 

V.  Wynn  112 

State  V.  Baird  339 

V.  Banks  340 

i\  Barrett  343 

V.  Beatty  386 

V.  Bennett  65 

V.  Bierce  360 

V.  Brady  28 

V.  Brown  67 

V.  Clark  457,  483,  619 

V.  Cleaves  102 

V.  Clottu  350 


Ixiv 


TABLE   OF   CASES   CITED. 


State  V.  Cook 

467 

V.  Dillon 

52-1 

V.  Dole 

46 

V.  Dyer 

65 

V.  Foy 

496,  499 

V.  Gibson 

28 

V.  Grace 

498 

V.  Hairston 

28 

V.  Handy 

524 

V.  Harris 

29 

V.  Hays 

172,  174 

V.  Herman 

308 

V.  Hooper 

28 

V.  Hughes 

503 

V.  Hulick 

215 

V.  Hyde 

421,  454 

V.  Jolly 

64 

V.  King 

840 

V.  Learnard 

523,"  524 

V.  Libbey 

343 

V.  Ludwick 

66 

V.  Mabrey 

61 

V.  McKown 

482 

V.  Mooney 

66 

V.  Murray 

508 

V.  Paine 

840 

V.  Parkerson 

102 

r.  Paul's  Ex'r 

503 

V.  Plaisted 

538,  582,  584 

V.  Potter 

102 

V.  Rhodes 

59 

V.  Richardson 

340,  842 

V.  Robertson 

126 

V.  Scott 

384,  343 

V.  Shumpert 

308 

V.  Smith 

340,  844 

V.  Strange 

496,  502 

V.  Straw 

67 

V.  Steele 

483 

V.  Stewart 

494 

V.  Taylor 

368 

V.  Thorn 

491 

V.  Tunnell 

497 

V.  Walker 

630 

V.  Whittier 

527 

V.  Williams 

102 

V.  Wilson 

67 

State  Bank  v.  Hinton 

185 

Stead  V.  Clay 

194 

V.  Nelson 

222 

Steadman  v.  Wilbur 

286,  287 

Stearns  v.  Weathers 

217 

Steckel's  Appeal 

381 

Steed  V.  Cragh 

123,  142 

Steedman  v.  Poole 

198 

Steel  V.  Steel                201 

202,  371,  373 

Steele  v.  Thacher 

354 

Steen  v.  State 

67 

Steffey  v.  Steffey 

153 

Stehman  v.  Huber 

145 

Stein  V.  Bowman 

64 

Steinberger  v.  Potter 

274 

Steinman  v.  Ewing 

236 

Steinmetz  v.  Halthin 
Stem's  Appeal 
Stephens,  Succession  of 

V.  Hume 

V.  James 

Stephenson,  Goods  of 
f.  Hall 
V.  State 
V.  Stephenson 
V.  Westfall 
Sterling  v.  Adams 

V.  Potts 
Stern  v.  Freeman 
Sterry  v.  Arden 
Stevens  v.  Armstrong 
V.  Bagwell 
V.  Owen 
V.  Parish 
V.  Savage 
V.  Smith 
V.  Story 
Stevenson  v.  Belknap 
V.  Bruce 
V.  Gray 
V.  Hardy 
Stevenson's  Appeal 
Stewart,  In  re 
V.  Ball 

V.  Harvard  College 
V.  Menzies 
V.  Munchandler 
V.  Stewart 
Stiffe  V.  Everitt 
Stigall  V.  Turner 
Stikeman  v.  Dawson 
Stiles  V.  Granville 

V.  Stiles 
Still  V.  Hall 
Stilley  V.  Folger 
Stillman  v.  Ashdown 

V.  Young 
Stillwell  V.  Miles 
Stimson  v.  White 
Stinson  v.  Prescott 
Stith  V.  Patterson 
Stock  V.  McAvoy 
Stocken  v.  Stocken 
Stocker  v.  Brockelbank 
Stockett  V.  Bird 
Stockton  V.  Wooley 
Stoddard  v.  Treadwell 
Stokes  V.  Brown 
V.  Cofley 
I'.  Hatcher 
V.  McKibbin 
Stone  V.  Carr 

V.  Codman 

V.  Dennis 

17.  Dennis  on 

V.  Dorrett 

V.  McNair 

V.  Stone  i 


138 
475 
445 
164 
419,  446, 
453 
159,  442 
355 
524 
595 
519 
570 
181 
579,  590 
282 
638 
252 
185 
235 
517 
185 
90,  93 
358 
462 
48,49 
79 
496 
135 
214 
644 
39,42 
29 
162 
126 
340 
568 
370 
286 
621 
263 
265 
441 
502 
246,  247 
87,  180 
295 
376 
825 
618,  619 
160 
171 
621 
579 
289 
560 
215 
77 
645 
557 
561 
408,  430 
79 
74,  365,  366 


TABLE  OF   CASES   CITED. 


Ixv 


Stone  V.  Western   Transportation 

Co.  609 

Stoner  v.  Commonwealth  122 

Stoolios  V.  Jenkins  570 

Stopford  V.  Lord  Canterbury  324 

Storey  v.  Asliton  639 

Storke  v.  Storke  460 

Story  V.  Johnson  584 

V.  Marshall  282 

V.  Pery  553 

Stoutenburg  v.  Lybrand  302 
Stovall  V.  Johnson                      346,  349 

Strain  v.  Wright  591 

Strangeways  v.  Robinson  383 


Strathmore  v.  Bowes 
Stratton's  Case 
Strawn  v.  Strawn 
Strickland  v.  Bartlett 
Stringfellow  v.  Mariot 
Stripiin  v.  Ware 
Strode  v.  Magowan 

V.  Strode 
Stroebe  v.  Fehl 
Strohl  V.  Levan 
Strong  V.  Beroujon 

V.  Birchard 

V.  Moe 

V.  Smith 
Stroop  V.  Swarts 
Strother  v.  Law 
Strouse  v.  Drennan 
Stuart  V.  Baker 

V.  Lord  Kirkwall 
Stubb  V.  Dixon 
Stumps  V.  Keiley 
Stupj)  V.  Holmes 
Sturdevant  v.  Norris 
Sturgis  V.  Champneys 

V.  Corp 
Sturtevant  v.  Starin 
Stutely  i».  Harrison 
Sudderth  v.  McCombs 
Suggitt's  Trusts,  In  re 
Sullivan  v.  Blackwell 
V.  McGowen 
V.  Sullivan 
Sullivan's  Case 
Sumner  v.  Conant 

V.  Sebec 
Sutherland  v.  GofF 
Sutphen  v.  Fowler 
Sutton  V.  Chetwynd 

V.  HufTman 

V.  Warren 
Swain  v.  Fidelity  Ins.  Co 

V.  Tyler 
Swan  V,  Dent 

V.  Wiswall 
Swartwout  v.  Oaks 
Swartz  V.  Hazlctt 
Swasey  v.  Vanderheyden 
Sweeney  v.  Damron 
V.  Smith 


270,  271 

462 

171 

154 

627 

334 

308 

84 

149 

361 

463 

413 

458,  483 

116 

102 

155 

486 

591 

221 

320 

595 

559,  598 

186 

128,  131 

219 

93 

420 

476 

133 

513 

170 

38,  64 

417 

154 

369 

462 

487 

264 

356,  357,  358 

28,  49 

598 

329 

462,  506 

154 

405,  477 

372 

557 

285 

232 


Sweet  V.  Sweet 

430 

Sweetwater  Co.  v.  Adney 

617 

Swift  V.  Bennett 

555,  556 

V.  Kelly 

38,48 

Swindall  v.  Swindall 

477 

Sykes  v.  Dixon 

618,  632 

Sym's  Case 

140 

Symes  v.  Lee 

227 

Syrames  v.  Drew 

185 

T. 


T.  V.  D.  32 

T.  V.  M.  32 

Taber  v.  Packwood  258 

Taff  V.  Hosmer  420 

Taft  V.  Sergeant  580 

Taggart  v.  Boldin  120 

Talbot  V.  Dennis  120 

V.  Earl  of  Shrewsbury  317,  453 

V.  Marshfield  245 

Tallmadge  v.  Grannis  143 

Tally  V.  Thompson  216 

Tanham  v.  Nicholson  375 

Tapley  v.  Tapley  153 

Tarbell,  Matter  of  560 

V.  Tarbell  263,  274 

Tarr  v.  Williams  227 

Tarrant  v.  Webb  643 

Tate  V.  Pene  308 

V.  Tate  590 

Tatterson  v.  Suffolk  Man.  Co.  607 

Taunton  v.  Plymouth  370 

Tawney  v.  Crowther  268 

V.  Ward  274 

Taylor  v.  Brewer  620 

V.  Croker  535 

V.  Green  100,  105 

V.  Jeter  312 

V.  Kilgore  462 

V.  Phillips  481 

V.  Pugh  270 

V.  Shelton  84,  230 

V.  Staples  374 

V.  Stone  202 

V.  Taylor  514 

Teal  V.  Sevier  314 

Tebbets  i'.  Hapgood  82 

Tebbs  V.  Carpenter  473 

Tefft  V.  Tefft  34 

Teller  v.  Bishop  213,  282 

Temple  v.  Hawley  530 

V.  Williams  208 

Tenbrook  v.  M'Colra  436 

Tennant  v.  Stoney  202 

Tenney  v.  Evans  464,  473 

Terry  v.  Belcher  64 

V.  Dayton  377 

V.  Hopkins  270 

V.  Hutchinson  358 

V.  Tuttle  487 

Terry's  Appeal  180 


Ixvi 


TABLE   OF  CASES   CITED. 


Thacher  v.  Dinsmore 

462 

V.  Phinney 

143 

Thatcher  v.  Umans 

288 

Thayer  v.  Gould 

151 

V.  White 

329 

Thing  V.  Libbey 

558, 

581 

Thoenberger  v.  Zook 

154 

Thomas,  In  re 

416, 

419 

V.  Bennett 

462 

V.  Burrus 

429 

r.  Cliicago 

121 

V.  T>e  Baum 

289 

V,  Dike 

561,  562 

593 

V.  Hargrave 

66 

V.  Thomas 

79 

,215 

V.  Williams  270,490,  562,  615, 

621 

V.  Wood  151 

Thomasson  v.  Boyd  579 

Thompson  v.  American,  &c.,  Ins.  Co. 

289 

V.  Boardman  472 

V.  Brown  481 

V.  Dorsey  330 

V.  Hamilton  543 

V.  Harvey  95 

V.  Ketcham  521 

V.  Lay  581 

V.  McKusick  202 

V.  Murray  208 

V.  Ross  356,  357 

V.  Thompson  79 

Thoms  V.  Thorns  186 

Thomson  v.  Davenport  628 

V.  Lee  County  123 

Thome  r.  Dillingham  107 

Thornton  v.  McGrath  485 

V.  Thornton  186 

Thorpe  V.  Eyre  127 

Thrall  v.  Wright  552 

Thrasher  v.  Tuttle  100 

Throgmorton  r.  Davis  107 

Thrupp  V.  Fielder  581 

Thrustout  V.  Coppin  139 

Thurlow  V.  Gilniore  576 

Thurston  v.  Holbrook's  Estate  422 

Tibbs  I'.  Alien  559 

V.  Brown  107 

Tidd  V.  Lister  125,  131,  157 

Tifft  V.  Tifft  362,  564 

Tillinghast  v.  Holbrook  546 

Tillman  v.  Shackleton  245,  246 

V.  Tillman  150 

Tillotson  t'.  M'Crillis  371 

Tillotsons,  In  re  487 

Tilton  1-.  Russell  552,  553 

Timbers  v.  Katz  117 

Timmins  v.  Lacy  308 

Timmons  v.  Timmons  593 

Tipping  V.  Tipping  172,  175 

Tipton  V.  Tipton  591 

Tisdale  v.  Risk  185 

Tllexan  v.  Wilson  173,  174 


Tobey  v.  Smith 

Tobin  V.  Addison 
V.  Crawford 
?;.  Dixon 

Todd  V.  Lee 

V.  Kerrich 
V.  Stokes 

Toler  V.  Slater 

Tomkins  v.  Tomkins 

Tompkins  v.  Tompkins 

Tone  V.  Sumners 

Torrey  v.  Torrey 

Torrington  v.  Norwich 

Totten's  Appeal 

Tourville  v.  Pierson 

Towle  V.  Swasey 

Towne  v.  Wiley 

Townsend  v.  Bumham 
V.  Cox 
V.  Downer 
V.  Kendall 
V.  Maynard 
V.  Tallant 

Townsley  v.  Chapin 

Tracy  v.  Keith 

Train  v.  Bayer 

Trapnall  v.  State  Bank 

Trappes  v.  Meredith 

Trask  v.  Stone 

Tremain's  Case 


75,  104 
462 
635 
129 

230,  216 
609 
94 
148 
327,  328,  329 
322 
109 
289 
343 
462 
153 
171 

565,  566 
328 
596 
559 

444,  451 
282 
441 
235 
75 
109 
543 
261 
595 

318,  460 


Tremont  v.  Mount  Desert  372 
Trenton  Banking  Co.  v.  Woodruff   202 

Treviband  v.  Lawrence  73 

Trevor  v.  Trevor  272 

Triggs  V.  Triggs  73 

Trimmer  v.  Heagy  154 

Tripner  v.  Abrahams  287 

Tritt  V.  Colwell  114,  117,  120 

Trotman  v.  Dunn  613 

Troutbeck  v.  Boughey  193 

Trueblood  v.  Trueblood  540 

Trueman  v.  Loder  635 

Trull  V.  Eastman  378 

Truss  V.  Old  438,  462,  472 

Tryon  v.  Sutton  118 

Tubb  V.  Harrison  320,  378 

Tubbs  V.  Gatewood  153 

Tucker  v.  Andrews  269 

V.  Inman  252,  253 

V.  Magee  605 

V.  Mckee  457 

V.  Moreland  543,  585,  587 

Tudor  V.  Samyne  140 

Tugman  v.  Hopkins  193,  629 

Tuswell  V.  Scott  387 

Tuilett  V.  Armstrong  137,  187,  188, 
195,  198,  199,  225,  227 

Tullis  V.  Fridley  285 

Tune  V.  Cooper  113 

Tunks  V.  Grover  212 

Tupper  V.  Caldwell  551 

V.  Fuller  289 

TurberviUe  v.  Stampe  647 


TABLE   OF   CASES   CITED. 


Ixvii 


Turberville  v.  Whitehouse  553 

Turner,  In  re  418 

V.  Collins  375 

V.  Cook  G4 

V.  Crane  115 

V.  Mason  613 

I'.  Mevers  29 

V.  Robinson  614,  622 

V.  Rookes  87,  95 

V.  Turner  69,  327 

V.  Vaughan  386 

Turnley  v.  Hooper  278 

Turpin  v.  Turpin  534,  536,  543 

Turton  v.  Turton  122 

Turtle  V.  Fowler  126 

V.  Muncy  112 

Tuttle  V.  Hoag  249 

V.  Holland  85 

Twisden  v.  Wise  118 

Tyler  v.  Lake  189,  191,  192 

V.  Tyler  522 

Tyrrell  v.  Hope  190,  191 

Tyrrell's  Case  242 

Tyrson  v.  Mattair  216 

Tyson  v.  Sanderson  477,  493 


u. 

U.  V.  J.  31 

Uhl  V.  Commonwealth  102 

Uhrig  V.  Horstman  245,  248 

Ulp  V.  Campbell  185 

Underbill  v.  Dennis  414,  417 

V.  Morgan  285 

Underwood  v.  Brockman  464 

Unger  v.  Price  282 

United  States   v.  Bainbridge  349,  350, 

533,  534,  560 

V.  Metz  369 

United  States  Bank  v.  Ennis  282 

Unity   and    Banking  Association, 

7/i  re  568 

Updike  V.  Ten  Broeck  372 

Urban  v.  Grimes  685 


Vaden  v.  Hance  377 

Van  Aernam  v.  Van  Aernara  308 

Vanartsdalen  v.  Vanartsdalen  400 

Vance  v.  Smith  282 
Vanderbilt  v.  Richmond  Turnpike 

Co.  641 

Vanderheyden  v.  Mallory  205,  228,  229 

V.  Vanderheyden  600 

Vanderveer  v.  Alston  121 

Van  Deusen  v.  Brower  597 

Vandevoort  v.  Gould  214 

Vandevort's  Appeal  579 

Van  Donge  v.  Van  Donge  374 

Van  Dorn  v.  Young                   346,  605 


Van  Duzer  v.  Van  Duzer 
Vane  v.  Vane 

Van  Epps  v.  Van  Deusen  124,  129, 
Van  Horn  v.  Freeman 
Van  Home,  Matter  of 
V.  Everson 
Vankirk  v.  Skillman 
Van  Metre  v.  Wolf 
Van  Note  v.  Downey 
Van  Pelt  v.  Corwine 
Vansittart  v.  Vansittart  293, 

Van  Valkenburg  v.  Watson      327, 
Van  Winkle  v.  Schoonmaker 
Vanzant  v.  Davies 
Varick  v.  Edwards 
Varney  v.  Young  368, 

Vasse  I".  Smith 

Vastie  v.  Underwood         155,  179, 
Vaughan  v.  Buck 

V.  Parr 

V.  Vanderstegen 


582, 
220, 
222, 


Velde  V.  Levering 

Verner,  Ex  parte 

Vernon  v.  Marsh  201, 

Verry  v.  Watkins 

Vidal  V.  Commajere  312, 

Villard  v.  Chovin 

Villareal  v.  Mellish  334, 

Vincent  v.  Parker 

Voorhees  v.  Presbyterian  Church, 

&c. 
Voorhies  v.  Voorhies  585, 

Vossel  V.  Cole  356,  359, 

Voullaire  v.  VouUaire 
Vreeland  v.  Vreeland 


213, 


517 
386 
517 
356 
614 
228 
232 
238 
216 
561 
343 
331 
263 
377 
378 
371 
566 
228 
132 
585 
221, 
223 
455 
274 
206 
360 
314 
467 
394 
144 

288 
587 
360 
417 
214 


W. 


W.  V.  H.  32 

Wade,  Succession  of  16,  64 

V.  Cantrell  285 

V.  Lobdell  497,  614 

V.  Thayer  637 

Wadhaus  v.  Am.  Home  Missionary 

Society  258 

Wagener  v.  Bill  102 

Wagner  v.  Ellis  253 

WagstafTy.  Smith  190 

Wahl  V.  Braun  295 

Wailing  v.  Toll  553,  697 

Wainwriglit  v.  Hardisty  225 

V.  Straw  627 

Wait  V.  Wait  300 
Waite  V.  North-Eastern  R.  R.  Co.    672 

Waithman  v.  Wakefield  78 

Wakefield  v.  Gibbon  278 

V.  Mackay  36 

V.  Phelps  269 

Wakeman  v.  Sherman  581 

Waldo  V.  Goodsell  110,  215 

Waldron,  Case  of  340 


Ixviii 


TABLE   OF   CASES   CITED. 


Wales  V.  Cofl5n 

V.  Newbould 
Walke  V.  Moody 
Walker  v.  Browne 
V.  Burrowes 
V.  Chambers 
V.  Coover 
V.  Crowder 
r.  Davis 
V.  Ellis 
V.  Gilman 
V.  Howard 
V.  Hunter 
V.  Laighton 
V.  Reamy 
V.  Simpson 
V.  South-Eastern 
■  v.  Stringfellow 
V.  Thomas 
V.  Walker       114 
Walker's  Case 
Wall  V.  Rogers 

V.  Tonilinson 
V.  Williamson 
Wallace  v.  Holmes 
V.  Lewis 
V.  McCullough 
V.  Morse 
V.  Talliaferro 
Waller  v.  Armistead 
V.  Campbell 
WaUingsford  v.  Allen 
Wallis  V.  Campbell 

V.  Day 
Walsh  V.  Powers 
V.  Wason 
Walter,  Ex  parte 
V.  Walter 
Walton  V.  Erwin 
V.  Green 
Waples  V.  Hastings 
Ward  V.  Amory 
V.  Dulaney 
V.  Evans 
V.  Roper 
V.  Shallet 
V.  Thompson 
Warde  v.  Warde 
Warden  v.  Jones 
Wardlaw  v.  Gray 
Wardle  v.  Claxton 
Wardwell  v.  Wardwell 
Ware  v.  Brush 

V.  Cartledge 
V.  Coleman 
V.  Gardner 
V.  Polhill 
Warfield  v.  Bobo 
Waring,  In  re 

V.  Darnall 
Warner  v.  Crouch 

V.  Erie  R.  R.  Co. 
V.  Heiden 


289 
232,  286,  287 
487 
456 
278 
605 
75,  236 
459 
566 
588 
238 

16 

635 

83,  96,  322 

234 

79,  93 

R.  R.  Co.  641 

294 

528 

121,  160,  378 

149 

189 

118,  122 

48 
474 
586 
265 
567 
116 
513 
503 
202,  281,  288 
418 
610 
585 
133 
609 
216 
600 

66 
540 
134 

29 

636 

340,  448 

282 

162 

61,  336,  338 

265 

514 

192 

400,  407 

585 

574 

412 

279 

467,  481 

16 
529 
475 
154 
643 

79 


Warner  v.  Warren 

231 

V.  Wilson 

421 

Warren,  Ex  parte 

404 

V.  Haley               201,  202 

203 

V.  Jen  ni  son 

165 

Warrender  v.  Warrender 

49 

293 

Warwick  v.  Bruce 

576 

V.  Cooper 

535 

V.  Hawkins 

191 

Washband  v.  Washband 

540 

Washburn  v.  Hale 

112 

V.  Nashville,  &c. 

R.  R. 

Co. 

644 

V.  Sproat 

166 

Wass  V.  Bucknam 

164 

Water  Co.  v.  Ware 

612 

645 

Waterman  v.  Wright 

498 

Waters  v.  Brogden 

636 

V.  Ebral 

467 

V.  Tazewell 

271 

Watkins,  Ex  parte 

410 

444 

V.  Abrahams 

238 

V.  Peck 

472 

V.  State 

441 

442 

V.  Thornton 

164 

Watson  V.  Broaddus 

218 

V.  Cross 

556 

V.  Hensel 

655 

V.  Marshall 

134 

V.  Robertson 

150 

V.  Stone 

476 

V.  Threlkeld 

86 

V.  Thurber 

228 

V.  Warnock 

418 

420 

Watt  V.  Watt 

160 

Watts  V.  Ball 

164 

V.  Steele 

324 

Waugh  V.  Waddell 

224 

Waul  V.  Kirkman 

16,  74 

Wayland  v.  Elkins 

638 

Weaver  v.  Jones 

640 

591 

Webb  V.  Cole 

611 

633 

V.  England 

605 

619 

V.  Sadler 

263 

Webb's  Appeal 

125 

Webster  v.  Conley 

472 

V.  Hildreth 

166 

231 

V.  McGinnis 

99 

Weed  V.  Beebe 

586 

V.  Ellis 

463 

V.  Panama  R.  R.  Co. 

641 

Weeks  v.  Holmes 

349, 

364 

V.  Leighton 

371, 

561 

V.  Merrow 

331 

Weems  v.  Bryan 

144 

Weger  v.  Penn.  R.  R.  Co. 

642 

Weisbrod  v.  Chicago,  &c.,  R. 

R.Co. 

233 

Weiser  v.  Lowenthal 

83 

Weisger  v.  Graham 

635 

Welborn  v.  Rogers 

539 

Welch  V.  Burris 

456, 

459 

V.  Welch 

161, 

548 

Welchman  v.  Sturgis 


622 


TABLE   OF  CASES   CITED. 


Ixix 


Wellborn  v.  "Weaver  106 

Weller  v.  Baker  143 

Wellesley  v.  Duke  of  Beaufort        320, 

322,  326,  335,  397 

V.  Wellesley     318,  335,  336, 

337 

Wells  V.  Thormaa  231 

V.  Tvler  115 

V.  Wells  285,  51U 

Wells's  Estate,  In  re  387 

Wendell's  Case  424 

Wennall  v.  Adney  617 

Wentworth  v.  Remick  289 

West  V.  Errissey  273 

V.  Forsythe  430,  434 

V.  Gregg  551 

V.  Howard  266 

V  Penny  543,  580 

V.  Ward  186 

V.  West  258,  261 

Westbrook  v.  Comstock  510 

West  Cambridge  v.  Lexington  301 

Westervelt  v.  Gregg  217 

Westgate  v.  Munroe  237 

Westmeath  v.  Westmeath  293 

Weston  V.  Stewart  463 

Weymouth  v.  Chicago,  &c.,  R.  R. 

Co.  238 

Whaley  v.  Whaley  184 

Wharton  v.  Mackenzie  549,  552 

V.  Wright  100 

Whatman  v.  Pearson  639 

Wheatley  v.  Calhoun  185 

Wheaton  v.  East  539,  586 

V.  Phillips  249 

Wheeler  v.  Bowen  116 

V.  Caryl  282 

V.  Hotchkiss  300 

V.  Moore  116 

Wheelwright  v.  Greer  386 

Wheldale  v.  Partridge  481 

Whichcote  v.  Lyle's  Ex'rs  531 

Whipple  V.  Dow  325,  373 

Wliistler  v.  Newman  224 

Whitaker  v.  Whitaker  161,  162 

Whitaker's  Case  426 

Whitcomb  v.  Barre  108,  110 

White  V.  Bayley  615 

V.  Callinan  232 

V.  Campbell  360 

V.  Dance  171 

V.  Flora  684 

V.  Graves  185 

y.  Henry  349,371 

V.  Herrick  530 

r.  Hildreth  166,231 

V.  Mchnett  230 

V.  Nesbit  476 

V.  Oeland  .  244 

V.  Palmer  121,  469,  474,  475,  511 

V.  Pomeroy  414 

V.  Ross  308 

V.  Story  280 


White  V.  Wager  258,  259,  288 

White's  Appeal  233 

Whitfield,  Ex  parte  417 

V.  Hales  335 

V.  Lord  Le  Despencer      630 

Wiiithead  v.  Mallory  185 

Whiting  V.  Dewey  472 

V.  Earle  347,  368 

V.  Stevens  154 

Whitley  v.  Murray  622 

Whitman  v.  Delano  102 

Wliitmarsh  v.  Robertson  137 

Whitmore  v.  Whitcomb  605 

Whitney  v.  Beckwith  243 

V.  Dutch       533,  540,  545,  580 

V.  Whitney  430,  497 

Whittingham's  Case  530 

Whittlesey  v.  Fuller  289 

Whitworth  v.  Carter  76 

Whywall  v.  Champion  544 

Wicklifie  v.  Dawson  235 

Wieman  v.  Anderson  245,  246 

Wier  V.  Still  37 

Wiggins  V.  Blount  121 

V.  Keizer  885 

Wightman  v.  Wightman  28 

Wigmore  v.  Jay  645 

Wilcox  V.  Roath  581 

Wilder  v.  Aldrich  285 

V.  Ember  '       595 

Wildman  v.  Wildraan  115,  118 

Wiles  V.  Wiles  129,  130 

Wiley  V.  Gray  282 

Wilhelm  i'.  Hardman  553,  561 

AVilie  V.  Brooks  591 

Wilkes  V.  Rogers  327 

Wilkinson  v.  Charles  worth  115 

V.  Cheatham  234 

V.  Gibson  300 

V.  Parry  521 

V.  Wilkinson  231,  387 

V.  Wright  236 

Willard  v.  Eastham  237 

I'.  Fairbanks  462 

V.  Pinard  626 

V.  Stone  535 

William  &  Mary  College  v.  Powell  282 

Williams  v.  Amory  145 

V.  Avery  218 

V.  Baldwin  66 

V.  Barnes  372 

V.  Brown  540 

V.  Carle  160,  269 

V.  Chambers  021 

V.  Clough  643 

V.  Coward  76 

V.  Cranstoun  630 

V.  Duncan  487 

V.  Finch  605 

V.  Harrison  493 

V.  Heirs  626 

V.  Hutchinson     359,  360,  378 

V.  Kent  73 


Ixx 


TABLE   OF  CASES   CITED. 


Williams  v.  Mabee 

588 

V.  Maull 

286 

!-'.  McGaliay 

93 

V.  McGrade 

214 

f.  Monroe 

79 

V.  Moor 

541 

V.  Morgan 

144 

V.  Morton 

480,491.493 

V.  Norris 

588 

V.  Gates 

49 

V.  Powell 

516 

r.  Prince 

93 

V.  State 

36,  40,  524 

r.  Wiggand 

487 

Williams'  Case 

168,  340,  481 

Williamson  v.  Codrington 

387 

V.  Parisian 

34 

V.  Williams 

31 

Willis  V.  Caclenhead 

217 

V.  Childe 

618 

V.  Fox 

471,  496 

V.  Roberts 

163 

r.  Snelling 

113 

V.  Twombly 

546,  583 

Williston  V.  White 

505 

Wills  V.  Savers 

191 

Wills'  Appeal 

471,  474 

Willson  V.  Smyth 

94,  95,  98 

Wilson  V.  Bailer 

218 

V.  Brown 

295 

V.  Ford 

79 

V.  Goit 

107 

V.  Hill 

154 

V.  Kohlheim 

374 

V.  Loomis 

249 

V.  McLaughlin 

630 

V.  ^lerry 

642,  646 

V.  Peverly 

638 

V.  Tumman 

635 

V.  Wilson 

292,  441 

Wilson's  Estate,  In  re 

274 

Wilson's  Trusts 

49 

Wilt  V.  Vickars 

353,  361 

Wilthaus  I'.  Ludicus 

245,  247 

Wilton  V.  Hill 

225 

Wimberley  v.  Jones 

584 

Winans  v.  Peebles 

288 

Winch  V.  James 

282 

Windsor  i'.  McAtee 

430 

Wing  V.  Taylor 

27 

Winn  V.  Sprague 

371 

Winslow  V.  Crocker 

112 

V.  Winslow 

462 

Winslowe  v.  Tighe 

139 

Winsmore  v.  Greenbank 

353 

Winstell  v.  Kehl 

148 

Winston  v.  Newcomen 

320 

Winter  v.  Walter 

214 

Wise  V.  Wilson 

613,  614 

Wiser  v.  Lockwood 

31 

I'.  Blachly 

490 

Wishard  v.  Medaris 

343 

Withers  v.  Hickman 

493 

Withers  v.  Weaver 
V.  Sparrow 
Witman's  Appeal 
Witter  V.  Witter 
Witty  V.  Marshall 
Wodell  V.  Coggeshall    344 
Wolf  V.  Van  Metre 
Wolfe  V.  Howes 
Wollaston  v.  Tribe 
Wolton  V.  Hele 
Womack  v.  Austin 

V.  Womack 
Wood  V.  Adams 
V.  Briant 
V.  Cobb 
V.  Corcoran 
V.  Downes 
t'.  Gale 
V.  Genet 
V.  Gills 
V.  O'Kelly 
V.  Warden 
V.  Washburn 
Woodbeck  v.  Havens 
Woodbury  v.  Hammond 
Woodcock  V.  Reed 
Woodin  V.  Burford 
Woodman  v.  Chapman 

V.  Neal 
Woodmeston  v.  Walker 
Woodruff  V.  Logan 
Woodruffe  v.  Cox 
Woods  V.  Mather 

V.  Simmons 
Woodward,  Ex  parte 
V.  Barnes 
V.  Camp 
V.  Dowse 
V.  Seaver 
V.  Wilson 
Woodward's  Appeal 
Woodworth  v.  Spring 
AVoolscombe,  Ex  parte 
Wooster  v.  Hunts  Lj^man 
Worcester  v.  Eaton 

V.  Marchant 
Word  V.  Vance 
Worrall  v.  Jacob 
Worrell's  Appeal 
Wortli  V.  York 
Wortman  v.  Price 
Worts  V.  Cubitt 
Wray  v.  Cox 
V.  West 
V.  Wray 
Wren  v.  Gayden 
V.  Kirton 
Wright  V.  Arnold 

V.  Brown     ^ 

V.  Donnell  378 

V.  Fearis  170 

V.  Germain  577,  586 

V.  Haskell  624 


274 
228 
514 

467 
317 

,  354,  370,  371 

155,  228,  232 
623 
264 

148,  156,  178 
514 
591 
46 
273 
645 
371 
613 
455 
208 
330 
79 
285 
493 
243 
497,  503 
248 
635 
70,  71 
233 
187 
660 
185 
487 
800 
338 
83,  85 
260 
186 
235 
234 
468 
444 
436 

Iron  Co.  185 
587 

321,  354,  378 
567 
293 

475,  476,  516 

214 

232 

387 

94 

605 

94 

441 

474 

516 

235,  605 


TABLE   OF   CASES   CITED. 


Ixxi 


Wright  V.  Hicks 

308 

V.  Kerr 

102 

V.  Leonard 

105, 

569 

V.  Maltlen  &  Melrose  R.  R. 

Co. 

571 

V.  Naylor 

450 

V.  Rutter 

123 

V.  Sadler 

288, 

289 

V.  Steele 

582 

V.  Vanderplank 

375 

V.  Wilcox 

639 

r340 

641 

V.  Wright 

286 

406 

AVych  V.  Packington 

514 

Wyckoff  17.  Boggs 

46 

Wylly  V.  Collins 

227 

230 

Wyman  v.  Adams 

558 

V.  Fox 

185 

V.  Hooper 

512 

Wyngert  r.  Norton 

620 

Wynn  v.  Benbury 

470 

508 

Yale  I'.  Dederer 
Yard  v.  EUard 


229,  230,  232,  234 
126 


Yates  V.  Lyon  537 

r.  Squires  638 

Yeager's  Appeal  496 

Yeatman  v.  Yeatman  54 

Yerger  v.  Jones  510 

Young  V.  Estes  184 

V.  Fowler  521 

V.  GraflP  228 

V.  Lorain  428 

V.  McKee  584 

V.  Paul  76 

V.  Smith  274 

V.  Tarbell  472 

V.  Young  431 

Younge  v.  Younge  593 

Yourse  v.  Norcross  154 

Yundt  V.  Hartrunft  108,  109 


Zerfing  v.  Mourer 
Zouch  V.  Parsons 

Zulkee  v.  Wing 


360 

532,  538,  539,  540, 

546,  563 

626 


DOMESTIC    RELATIONS. 


[1] 


*THE  DOMESTIC  HELATIONS.        *3 


PAKT  I. 

INTRODUCTORY   CHAPTER. 

The  law  of  tlie  domestic  relations  is  the  law  of  the  house- 
hold or  family,  as  distinguished  from  that  of  individuals  in  the 
external  concerns  of  life.  Five  leading  topics  are  embraced 
under  this  head :  First,  husband  and  wife.  Second,  parent 
and  child.  Third,  guardian  and  ward.  Fourth,  infancy. 
Fifth,  master  and  servant.  These  will  be  successively  con- 
sidered in  the  present  treatise. 

Our  general  rule  of  classification  is  borrowed  from  Kent.^ 
But  other  writers  on  the  domestic  relations  have  analyzed 
their  subject  differently.  Blackstone  omits  infancy  as  a  topic 
distinct  from  parent  and  child,  and  hence  makes  but  four 
divisions.^  The  same  is  true  of  Reeve.^  Such  a  method  of 
treatment  answered  the  purpose  of  these  writers  sufficiently ; 
but  since  their  day  the  topic  of  guardian  and  ward  has  grown 
into  importance,  giving  occasion  to  the  discussion  of  many 
principles  which  apply  as  well  to  parent  and  child,  for  which 
reason  it  is  found  better  to  draw  off  from  both  what  is  peculiar 
to  neither,  and  make  the  new  heading  of  infancy.  Bingham, 
on  the  other  hand,  wrote  a  treatise  in  which  the  only  divi- 
sions observed  were  those  of  infancy  and  coverture*  This 
plan  would  be  found  defective  for  a  work  like  the  present ; 
for,  in  the  first  place,  the  subject  of  master  and  servant 
must  be  ignored  *  altogether ;  and,  secondly,  that  of  guar-  *  4 
dian  and  ward  cannot  receive  the  distinctive  treatment 

1  2  Kent  Com.  Lee.  26-32.  2  i  Bl.  Com.  Lee.  14-17. 

3  Reeve's  Dom.  Rel.  *  Bing.  Inf.  &  Gov. 

[3] 


*  4  INTRODUCTORY. 

it  deserves.  Besides,  the  very  juxtaposition  of  two  such  words 
as  "infancy"  and  "coverture"  suggests  a  similitude  neither 
flattering  to  woman,  nor  in  accordance  with  the  present  law 
of  husband  and  wife;  as  will  fully  aj)pear  hereafter.  Fraser, 
who  wrote  for  readers  of  the  civil,  or  rather  the  Scotch  law, 
while  otherwise  classifying  like  Blackstone,  adds  the  relation 
of  master  and  apprentice  to  that  of  master  and  servant,^  in 
which  respect  his  example  is  not  to  be  imitated  by  common- 
law  writers.  Upon  the  whole,  therefore,  the  rule  of  Kent 
seems  to  us  the  preferable  one,  as  being  concise,  comprehen- 
sive, and  well  adapted  to  the  present  state  of  English  and 
American  law. 

It  is  curious  to  notice  that  all  of  these  writers — and  there 
are  none  else  of  standard  authority  who  profess  to  occupy  the 
whole  subject  —  plunge  at  once  into  the  law  of  their  leading 
topics  with  nothing  by  way  of  general  introduction  ;  nothing 
to  indicate  to  the  reader  whither  they  propose  leading  him. 
Not  one  has  attempted  to  draw  the  chart  which  shall  deter- 
mine his  legal  bearings.  Nor  is  a  definition  of  the  term 
"  domestic  relations  "  to  be  found  in  the  books  above  specified. 
Indeed  were  it  not  for  the  title-page  of  Reeve's  work,  and  a 
few  casual  passages  in  Kent's  Commentaries,  where  the  same 
words  occur,  one  might  ask  how  the  expression  "  domestic  rela- 
tions "  crept  into  general  use  among  lawyers.  Blackstone  uses 
the  terms  "  private  economical  relations,"  and  "  relations  in 
private  life ;  "  words  which  of  themselves  would  seem  to  give 
a  much  wider  scope  to  our  subject.^  But  Blackstone,  at  all 
times,  manifests  a  strong  predilection  for  independent  anal- 
ysis, with  special  reference  moreover  to  the  arrangement  of 
his  course  of  lectures;  and  in  this  particular  instance  the  con- 
text as  well  as  the  classification  seems  to  show  that  "  domestic 
relations  "  was  the  topic  in  his  mind.  Fraser's  complete 
*5  title  is  *  "personal  and  domestic  relations."  Notwith- 
standing all  this  it  is  certain  that  "  domestic  relations  " 
is  now  the  well-sanctioned  title  of  that  law  which  embraces 

1  Eras.  Dom.  Rel.  (Scotch).     2  vols. 

2  1  Bl.  Com.  Lee.  14.  The  writer  had  just  finished  discussing  at  length  the 
rights  and  duties  of  persons  as  standing  in  the  public  relations  of  magistrates  and 
people ;  and  the  word  "private  "  marks  the  desired  contrast. 

[4] 


INTRODUCTORY.  *  5 

the  topics  specified  by  us  at  the  outset ;  as  those  who  exam- 
ine the  digests  of  reported  cases,  and  the  codes  of  our  leading 
States,  can  testify.  To  legal  precision  in  this  respect.  Reeve 
certainly  contributed  not  a  little  by  the  choice  of  a  suitable 
title  for  his  volume,  so  long  the  standard  text-book  for  Eng- 
lish and  American  students. 

Starting  then  with  a  definition  simple,  natural,  and  well 
adapted  to  the  materials  in  hand,  we  next  ask  what  are  the 
proper  limitations  of  our  subject ;  what  should  a  text-book  on 
the  English  and  American  law  of  the  domestic  relations  com- 
prise.    As  to  three  of  our  topics,  —  husband  and  wife,  parent 
and  child,  and  infancy,  — the  question  is  easily  answered. 
Their  very  names  convey  a  distinct  significance  even  to  the 
mind  of  the  unprofessional  reader.     Except  it  be  in  the  mean- 
ing of  the  word  "  infancy,"  Avhich  the  law  appHes  to  all  per- 
sons not  arrived  at  majority,  but  popular  usage  restricts  to  the 
period  of  helplessness,   all  intelligent  persons  agree  in  the 
general  use  of  the  terms  we  have  employed.     And  so  strong 
are   the  moral  obligations  which   attend   marriage    and   the 
training  of  offspring,  so  intimately  blended  with  the  welfare 
and  happiness  of  mankind  are  the  ties  of  wife  and  child,  that 
scarcely  any  one  grows  up  without  some  knowledge  of  the 
general  principles  of  law  applicable  to  these  topics,  and  par- 
ticularly of  such  of  the  rights  and  duties  as  concern  the  person 
rather  than  the  property.     For  positive  law  but  enforces  the 
mandates  of  the  law  of  nature,  and  develops  rather  than  cre- 
ates a  system. 

Yet  even  here  it  should  be  observed  by  the  professional 
reader,  that  the  term  "husband  and  wife  "  is  acquiring  at  law 
a  more  limited  and  technical  sense  than  formerly.  The  idea  of 
marriage  involves  both  the  entrance  to  the  relation  and  the 
relation  itself ;  and  aldn  to  marriage  celebration  is  the  disso- 
lution of  marriage  by  divorce,  or  what  we  may  term  the  legal 
exit  to  the  relation.  Hence  marriage  and  divorce  con- 
stitute an  important  *  topic  by  themselves  ;  and  we  find  *  6 
treatises  which  profess  to  deal  with  these  alone.  The 
rights  and  duties  which  grow  out  of  the  marriage  relation,  on 
the  other  hand,  still  remain  for  separate  discussion  ;  the  con- 
sequence of  the  celebration ;  the  effect  of  marriage  upon  the 

[5] 


♦  6  INTRODUCTORY. 

property  of  eacli ;  the  personal  status  of  the  parties ;  in  short, 
what  new  legal  responsibilities  are  assumed  and  what  legal 
privileges  are  gained  by  the  two  persons  who  have  once 
voluntarily  united  as  husband  and  wife.  It  is  to  this  latter 
subdivision  rather  than  the  former  that  the  title  of  husband 
and  wife  seems  at  the  present  day  to  apply.  Reeve  devotes 
but  a  brief  chapter  to  marriage  and  divorce.  Kent  separates 
the  subdivisions  completely,  appljdng  the  title  husband  and 
wife  as  above.  Yet  Blackstone,  writing  before  either,  had 
devoted  two-thirds  of  his  lecture  on  husband  and  wife  to  the 
treatment  of  marriage  and  divorce  alone,  and  very  briefly  dis- 
posed of  the  rights  and  disabilities  of  the  marriage  union 
under  the  same  general  heading.  The  many  and  rapid 
changes  to  which  the  entire  law  of  husband  and  wife  has  been 
latterly  subjected ;  the  growth  of  divorce  legislation  on  the 
one  hand,  and  of  property  legislation  for  married  women  on 
the  other,  fully  justifies  a  subdivision  so  important.  We  shall 
subordinate,  then,  the  topic  of  marriage  and  divorce  to  that 
of  the  marriage  status,  following  in  this  respect  the  modern 
legal  usage  ;  at  the  same  time  noting  that  if  some  special 
term  could  be  coined  to  distinguish  the  subdivision  husband 
and  wife  from  that  general  division  which  bears  the  same 
name,  our  analysis  would  be  more  exact. 

As  to  guardian  and  ward,  the  limitations  of  our  treatise 
are  not  so  easily  marked  out.  In  respect  of  the  domestic 
relations,  the  guardian  is  a  sort  of  temporary  parent,  created 
by  the  law,  to  supply  to  young  children  the  place  of  a  natural 
protector.  But  the  term  "  guardian  "  is  used  rather  indiscrimi- 
nately in  these  days  with  reference  to  all  who  need  protection 
at  the  law.  Thus  we  have  guardians  of  insane  persons  ; 
guardians  of  spendthrifts  ;    and  even   guardians  of  the 

*  7    poor.     Blackstone  *  treats  of  these  last  guardians  under 

the  head  of  public  relations ;  and  certainly  they  do  not 
fall  within  the  clear  scope  of  private  or  domestic  relations. 
Yet  the  legal  princijDles  apjDlicable  to  one  class  of  guardians 
frequently  extend  as  weU  to  aU  others  ;  and  we  shall  hardly 
expect  in  these  pages  to  trace  with  distinctness  that  shadowy 
line  which  separates  the  temporary  parent  from  the  town 
officer  ;  nor  would  the  consulting  lawyer  expect  us  to  do  so. 
[6] 


INTRODUCTORY.  *  7 

Again,  a  guardian's  duties  are  chiefly  with  respect  to  prop- 
erty ;  and  herein  they  so  nearly  resemble  those  of  testamentary 
trustees  that  one  frequently  finds  himself  gliding  unconsciously 
from  the  law  of  the  family  into  the  law  of  trusts. 

With  the  last  topic  of  the  domestic  relations  —  that  of 
master  and  servant  —  the  rule  of  classification  becomes  even 
more  uncertain.  If  servants  connected  with  the  household 
w^ere  alone  to  be  considered  in  a  treatise  upon  the  domestic 
relations,  the  modern  cases  would  be  simple  and  few  ;  but  no 
writer  has  presumed  to  hmit  himself  to  such  narrow  bounds. 
In  former  centuries,  this  relation  had  a  marked  significance. 
In  these  days,  we  dislike  to  call  any  man  master.  The  recent 
abolition  of  slavery  in  the  United  States  has  wellnigh  removed 
all  traces  of  an  institution  Imown  to  the  ancient  Roman 
empire ;  elsewhere  recognized  as  the  common'  barbarian  ac- 
companiment of  barbarian  triumphs ;  and  in  spirit,  if  not  in 
the  letter,  cnce  fastened  upon  the  common  law,  while  the 
feudal  system  lasted.  As  one  of  the  domestic  relations,  this 
topic  of  master  and  servant  is  of  little  present  importance  in 
England  or  America';  although  it  has  doubtless  an  existence. 
In  its  analogies,  however,  or  as  a  relation  suh  modo,  master 
and  servant  has  features  which  the  courts  constantly  regard. 
Apprentices  are,  without  much  violation  of  principle,  included 
under  this  head  ;  they  are  generally  bound  out  during  minority 
and  brought  up  in  families.  Clerks  are  not  so  readily  con- 
fined within  the  circle  of  domestic  relations  as  formerly ;  and 
the  same  is  to  be  said  of  factors,  bailiffs,  and  stewards. 
The  employes  *  of  a  corporation  are  frequently  designated  *  8 
as  servants  ;  so  are  laborers  generally.  But  it  cannot  be 
denied  that  master  and  servant  is  rather  a  repulsive  title,  and 
fast  losing  favor  in  this  republican  country ;  that  as  one  of 
the  purely  domestic  relations  it  rarely  attracts  attention  ;  and 
that  in  sounding  its  legal  depths,  one  often  loses  sight  of  his 
landmarks,  and  finds  himself  drifting  out  into  the  more 
general  subject  of  principal  and  agent. 

Whether  we  consult  the  facts  of  history  or  the  inspu^ations 
of  human  reason,  the  family  may  be  justly  pronounced  the 
earliest  of  all  social  institutions.     Man,  in  a  state  of  nature 

[7] 


*  8  INTRODUCTORY. 

and  alone,  was  subject  to  no  civil  restrictions.  He  was  inde- 
pendent of  all  laws,  except  those  of  God.  But  when  man 
united  with  woman,  both  were  brought  under  certain  re- 
straints for  their  mutual  well-being.  The  propagation  of 
offspring  alforded  the  only  means  whereby  society  could  hope 
to  grow  into  a  permanent  and  compact  system.  Hence  the 
sexual  cravings  of  nature  were  speedily  brought  under  whole- 
some regulations ;  as  otherwise  the  human  race  must  have 
perished  in  the  cradle.  Natural  law,  or  the  teachings  of 
a  Divine  Providence,  supplied  these  regulations.  Families 
preceded  nations.  These  families  at  first  lived  under  the 
paternal  government  of  the  person  who  was  their  patriarch 
or  chief.  But  as  they  increased,  they  likewise  divided  ;  their 
interests  became  conflicting,  and  hostilities  arose.  Hence 
when  men  cahie  afterwards  to  unite  for  their  common  de- 
fence, they  composed  a  national  body,  and  agreed  to  be 
governed  by  the  will  of  him  or  those  on  whom  they  had  con- 
ferred authority.  Thus  did  government  originate.  And 
government,  for  its  legitimate  purposes,  placed  restrictions 
upon  the  governed  ;  which  restrictions  "thenceforth  were  to 
apply  to  individuals  in  both  their  family  and  social  relations.^ 
But  the  law  of  the  domestic  relations  is  nevertheless  older 
than  that  of  civil  society.  In  fact,  nations  themselves  are 
often  regarded  as  so  many  families  ;  and  the  very  name 

*  9    which  is  *  placed  at  the  head  of  this  work,  the  legislator 

constantly  applies   to    the  public   concerns  of  his  own 
country  as  contrasted  with  those  of  foreign  governments. 

The  supremacy  of  the  law  of  family  should  not  be  forgotten. 
We  come  under  the  dominion  of  this  law  at  the  very  moment 
of  birth ;  we  thus  continue  for  a  certain  period,  whether  we 
will  or  no.  Long  after  infancy  has  ceased  the  general  obli- 
gations of  parent  and  child  may  continue  ;  for  these  last 
through  life.  Again  we  subject  ourselves  by  marriage  to  a 
law  of  family  ;  this  time  to  find  our  responsibilities  still  further 
enlarged.  And  although  the  voluntary  act  of  two  parties 
brings  them  within  the  law,  they  cannot  voluntarily  retreat 
when  so  minded.     To  an  unusual  extent,  therefore,  is  the  law 

1  See  Burlamaqui  Nat.  Law,  ch.  iv.  §§  6,  9. 

[8] 


INTRODUCTORY.  ♦  9 

of  family  above,  and  independent  of,  the  individual.  Society 
provides  the  home ;  public  policy  fashions  the  system  ;  and 
it  remains  for  each  one  of  us  to  place  himself  under  rules 
which  are,  and  must  be,  arbitrary. 

So  is  the  law  of  family  universal  in  its  adaptation.  It  deals 
directly  with  the  individual.  Its  provisions  are  for  man  and 
woman ;  not  for  corporations  or  business  firms.  The  ties  of 
wife  and  child  are  for  all  classes  and  conditions  ;  neitlier  rank, 
wealth,  nor  social  influence  weighs  heavily  in  the  scales.  To 
every  one  public  law  assigns  a  home  or  domicile ;  and  this 
domicile  determines  not  only  the  status,  capacities,  and  rights 
of  the  person,  but  also  his  title  to  personal  property.  There 
is  the  pohtical  domicile,  which  limits  the  exercise  of  political 
rights.  There  is  the  forensic  domicile,  upon  which  is  founded 
the  jurisdiction  of  the  courts.  There  is  the  civil  domicile, 
which  is  acquired  by  residence  and  continuance  in  a  certain 
place.  The  place  of  birth  determines  the  domicile  in  the  first 
instance  ;  and  one  continues  until  another  is  properly  chosen. 
The  domicile  of  the  wife  follows  that  of  the  husband  ;  the 
domicile  of  the  infant  may  be  changed  by  the  parent.^  Thus 
does  the  law  of  domicile  conform  to  the  law  of  nature. 

*  The  most  interesting  and  important  of  the  domestic  *  10 
relations  is  that  of  husband  and  wife.  The  law  of 
England  and  America,  on  this  topic,  is  now  undergoing  a 
remarkable  change  ;  and  so  unsettled  are  its  principles  at  the 
present  time,  that  the  writer  has  felt  constrained  to  depart 
somewhat  from  the  usual  plan  of  law  treatises,  adopting  what 
might  be  termed  a  consecutive  or  historical  arrangement  of 
his  materials  ;  since  otherwise  the  subject  Avould  furnish  to 
the  reader's  mind  httle  else  than  a  series  of  unreconciled  con- 
tradictions. To  show  clearly  why  the  later  cases  conflict  with 
the  earlier,  wiU  at  least  aid  the  future  legislator  and  jurist  in 
their  efforts  to  place  tlie  law  of  husband  and  wife  upon  a  firm 
and  just  basis  ;  and  meanwhile  afford  to  the  practising  lawyer 
all  the  assistance  which  he  can  reasonably  expect. 

This  confused  state  of  the  law  of  husband  and  wife  results 

1  See  1  Burge  Col.  &  For.  Laws,  32,  33. 

[9] 


*  10  INTRODUCTORY. 

from  a  contest  still  going  on  between  two  opposing  schemes, 
for  adjusting  the  property  rights  of  the  married  parties.  The 
one  is  the  common-law  scheme ;  the  other  that  of  the  civil 
law.  The  former  is  at  the  basis  of  our  jurisprudence,  English 
and  American.  The  latter  has  had  a  powerful  influence  in 
modern  times,  moulding  the  doctrines  of  the  equity  tribunals 
and  shaping  recent  legislation.  Let  us  examine  these  schemes 
separately. 

The  common-law  scheme  makes  unity  in  the  marriage  rela- 
tion its  cardinal  point.  But  to  secure  this  unity  the  law 
starts  with  the  assumption  that  the  wife's  legal  existence 
becomes  suspended  or  extinguished  during  the  marriage  state  ; 
it  sacrifices  her  property  interests,  and  places  her  almost 
absolutely  within  her  husband's  keeping,  so  far  as  her  civil 
rights  are  concerned.  Her  fortunes  pass  by  marriage  into  her 
husband's  hands,  for  temporary  or  permanent  enjoyment,  as 
the  case  may  be  ;  she  cannot  earn  for  herself,  nor,  in  general, 
contract,  sue,  or  be  sued  in  her  own  right;  and  this  because 
she  is  not  in  legal  contemplation  a  person.  The  husband  loses 
little  or  nothing  of  his  own  independence  by  marriage ; 

*  11    but   in  order  *  to  distribute    the  matrimonial  burdens 

with  some  approach  to  equality,  the  law  compels  him 
to  pay  debts  on  his  wife's  account,  which  he  never  in  fact 
contracted,  not  only  where  she  is  held  to  be  his  agent  by  legal 
implication,  but  whenever  it  happens  that  she  has  brought 
him  by  marriage  outstanding  debts  without  the  corresponding 
means  of  paying  them.  Husband  and  wife  take  certain  inter- 
ests in  one  another's  lands,  such  as  curtesy  and  dower,  which 
become  consummate  upon  survivorship.  In  general,  their  prop- 
erty rights  are  summarily  adjusted  by  the  law  with  reference 
rather  to  precision  than  principle.  On  the  whole,  however, 
the  advantages  are  with  the  husband ;  and  he  is  permitted  to 
lord  it  over  the  wife  with  a  somewhat  despotic  sway :  as  the 
old  title  of  this  subject  —  haron  and  feme  —  plainly  indicates. 
Yet  marriage  stood  well  at  the  common  law,  and  the  Anglo- 
Saxon  home  has  long  been  proverbial  for  peace  and  purity. 
This  is  partly  because  of  the  liberal  tendencies  of  the  race, 
that  love  of  justice  and  personal  independence  which  always 
[10] 


INTRODUCTORY.  *  11 

characterized  it,  and  the  steadfast  disposition  of  the  courts 
both  to  administer  the  unwritten  law  impartially,  and  to 
extend  and  adapt  its  provisions  to  the  ever-changing  wants  of 
society.  Even  in  feudal  times  woman  was  the  object  of  rev- 
erent esteem,  if  not  of  idolatry;  her  weakness  made  men 
all  the  more  zealous  to  cherish  and  defend  her ;  and  elevated 
to  the  pedestal  of  honor,  the  wife  stood,  perhaps,  as  securely 
as  she  ever  can  upon  the  prosaic  ground  of  legal  equality. 

The  civil-law  scheme  pays  little  regard  to  the  theoretic 
unity  of  a  married  pair.  It  looks  rather  to  the  personal  inde- 
pendence of  both  husband  and  wife.  Each  is  to  be  protected 
in  the  enjoyment  of  property  rights.  In  the  most  polished 
ages  of  Roman  jurisprudence,  we  find,  therefore,  that  husband 
and  wife  were  regarded  as  distinct  persons,  with  separate 
rights,  and  capable  of  holding  distinct  and  separate  estates. 
The  wife  was  comparatively  free  from  all  civil  disabilities.  She 
was  alone  responsible  for  her  own  debts  ;  she  was  com- 
petent to  sue  and  *  be  sued  on  her  own  contracts  ;  .nor  *  12 
could  the  husband  subject  her  or  her  property  to  any 
liability  for  his  debts  or  engagements. ^  Whether  in  setting 
at  naught  that  identity  of  interests  which  is  essential  to 
domestic  happiness,  such  a  scheme  is  fatally  defective,  need 
not  here  be  discussed.  Certain  it  is,  however,  that  the  policy 
of  the  Roman  empire  in  respect  of  the  marriage  institution 
furnishes  by  no  means  an  example  of  marked  success,  whether 
we  regard  its  effect  upon  either  husband  or  wife.  Wide- 
spread incestuous  intercourse,  licentiousness  most  loathsome 
and  unnatural,  followed  in  the  wake  of  marital  independence  ; 
and  as  the  interests  of  husband  and  wife  began  to  diverge, 
the  bonds  of  family  affection  became  weakened.  When  Rome 
sank  into  utter  dissolution,  woman  possessed  a  large  share  of 
cultivation  and  personal  freedom ;  yet  she  had  touched  the 
lowest  depths  of  social  degradation. 

The  more  minute  details  of  the  common-law  scheme  of 
husband  and  wife  belong  to  the  main  portion  of  this  volume, 
and  need  not  here  be  anticipated.     Not  so,  ho'wever,  with  the 

»  See  1  Burge  Col.  &.  For.  Laws,  202,  263. 

[11] 


*  12  INTRODUCTORY. 

civil-law  scheme ;  and  we  proceed  to  elaborate  it  somewhat 
further.  In  the  earlier  period  of  Roman  law  the  marital 
power  of  the  husband  was  as  absolute  as  t\\Q  ijatria  potestas. 
But  before  the  time  of  the  Emperor  Justinian  it  had  assumed 
the  aspect  already  noticed  ;  in  which  it  is  to  be  distinguished 
from  all  other  codes.  The  commiinio  honorum,  which  is  to  be 
found  in  so  many  modern  systems  of  jurisprudence,  might 
have  been  part  of  the  Roman  law,  but  it  had  long  before  the 
compilation  of  the  Digest  fallen  into  disuse.  The  peculiarities 
of  the  civil  law  in  this  respect  may,  perhaps,  be  referred  to 
the  disuse  into  which  formal  rites  of  marriage  had  fallen. 
Formal  marriage  gave  to  husband  and  wife  a  community  of 
interest  in  each  other's  property.  But  marriage  per  usum,  or 
by  cohabitation  as  man  and  wife,  which  became  universally 
prevalent  in  later  times,  did  not  alter  the  status  of  the  female  : 
she  still  remained  subject  to  her  father's  power.    Hence 

*  13    *  parties  united   in  a  marriage  jyer  usum  acquired  no 

general  interest  in  one  another's  property-,  but  only  an 
incidental  interest  in  certain  parts  of  it.     The  wife  brought 
her  dos  ;  the  husband  his  anti-dos  ;  in  all  other  property  each 
retained  the  rights  of  owners  unaffected  by  their  relation  of 
husband  and  wife.     The  dos  and  anti-dos  were  somewhat  in 
the    nature   of  mutual   gifts   in   consideration   of  marriage. 
Every   species    of   property   which   might   be   subsequently 
acquired  as  Avell  as  that  owned  at  the  time  of  marriage,  could 
be  the  subject  of  dotal  gift.     The  father,  or  other  paternal 
ancestor  of  the  bride,  was  bound  to  furnish  the  dos,  and  the 
husband  could  compel  them  afterwards,  if  they  failed  to  do 
so ;  the  amount  or  value  being  regulated  according  to  the 
means  of  the  ancestor  and  the  dignity  of  the  husband.     This 
pecuniary  consideration  appears  to  have  influenced  the  later 
marriages  to  a  very  considerable  extent.     And  while  the  hus- 
band had  no  concern  with  the  wife's  extra-dotal  property,  — 
since  this  she  could  manage  and  alienate  free  from  all  control 
or   interference,  —  over   her   dotal   property  he    acquired   a 
dominion  which  was  determinable  on  the  dissolution  of  the 
marriao-e,  unles's  he  had  become  the  purchaser  at  an  estimated 
value.     As  incidental  to  this  dominion  he  had  the  usufruct  to 
himself,  he  might  sue  his  wife  or  any  one  else  who  obstructed 
[12] 


INTRODUCTORY.  *  13 

his  free  enjoyment,  and  he  could  alienate  the  personal  prop- 
erty at  pleasure.  But  he  could  not  charge  the  real  estate 
unless  a  purchaser;  and  upon  his  death  the  wife's  dotal 
property  belonged  to  her,  or  if  she  had  not  been  emancipated, 
to  her  father  ;  and  to  secure  its  restitution  after  the  dissolu- 
tion of  marriage,  the  wife  had  a  tacit  lien  upon  her  husband's 
property.  Of  the  anti-dos,  or  donatio  projjter  nuptias,  not  so 
much  is  known  ;  but  this  appears  to  have  generally  corre- 
sponded with  the  dos;  it  was  restored  by  the  wife  upon  the 
dissolution  of  marriage  ;  and  was  regarded  as  her  usufructu- 
ary property  in  like  manner.  It  was  not  necessarily  of  the 
same  value  or  amount  with  the  wife's  dos.  Over  his  general 
property  the  husband  retained  the  sole  and  absolute 
power  of  alienation,  and  *his  wife  had  no  interest  in  it,  *  1-1 
nor  could  she  interfere  with  his  right  of  management.^ 

But  the  civil  law  allowed  agreements  to  be  made  by  which 
these  rights  might  be  regulated  and  varied  at  pleasure.  And 
by  their  stipulations  the  married  parties  might  so  enlarge  their 
respective  interests  as  to  provide  for  rights  to  the  survivor.^ 
These  agreements  were  not  unlike  the  antenuptial  settlements 
so  well  known  to  modern  equity  courts. 

The  communio  honorum,  or  community  system,  occupies  an 
intermediate  position  between  the  civil  and  common-law 
schemes.  The  communio  honorum  may  have  been  part  of  the 
Roman  law  at  an  earlier  period  of  its  history,  but  it  had  ceased 
to  exist  long  before  the  compilation  of  the  Digest ;  though 
parties  might  by  their  nuptial  agreement  adopt  it.^  This  con- 
stitutes so  prominent  a  feature  of  the  codes  of  France,  Spain, 
and  other  countries  of  modern  Europe,  whence  it  has  likewise 
found  its  way  to  Louisiana,  Florida,  Texas,  Cahfornia,  and 
other  adjacent  States,  once  subject  to  French  and  Spanish 
dominion,  that  it  deserves  a  passing  notice.  The  relation  of 
husband  and  wife  is  regarded  by  these  codes  as  a  species 
of  partnership,  the  property  of  which,  like  that  of  any  other 
partnership,  is  primarily  liable  for  the  payment  of  debts. 
This  partnership  or  community  applies  to  all  property  acquired 

»  1  Surge  Col.  &  For.  Laws,  202 ;  ib.  263  et  seq. 

2  lb.  273.  ^  lb.  203. 

[13] 


*  14  INTRODUCTORY. 

during  marriage  ;  and  it  is  the  well-settled  rule  that  the  debts 
of  the  partnership  have  priority  of  claim  to  satisfaction  out 
of  the  community  estate.  Sometimes  the  community  is  uni- 
versal, comprising  not  only  property  acquired  during  cover- 
ture, but  all  which  belonged  to  the  husband  and  wife  before 
or  at  their  marriage.^  It  is  evident,  therefore,  that  the 
provisions  of  such  codes  may  differ  widely  in  different  States 
or  countries.  The  principle  which  distinguishes  the  com- 
munity from  both  the  civil  and  common-law  schemes  is, 
however,  clear ;  namely,  that  husband  and  wife  should 
have  no  property  apart  from  one  another.     This  law 

*  15    embraces  profits,  *  income,  earnings,  and  all  property 

which,  from  its  nature  and  the  interest  of  the  owner,  is 
the  subject  of  his  uncontrolled  and  absolute  alienation;  but 
certain  gifts  made  between  husband  and  wife  in  contemplation 
of  marriage  are  of  course  properly  excluded.^  Whether 
antenuptial  debts  are  to  be  paid  from  the  common  property, 
as  well  as  debts  contracted  while  the  relation  of  husband  and 
wife  continues,  would  seem  to  depend  upon  the  extent  of 
the  eommunio  bonoriwi,  as  including  property  brought  by  each 
as  capital  stock  to  the  marriage,  or  only  such  property  as  they 
acquire  afterwards.^  The  codes  of  modern  Europe  recognize 
no  general  capacity  of  the  wife  to  contract,  sue  and  be  sued, 
as  at  the  later  civil  law.  On  the  contrary,  the  husband 
becomes  by  his  marriage  the  curator  of  his  wife.  He  has 
therefore  the  sole  administration  and  management  of  her 
property  and  that  of  the  community  ;  and  she  is  entirely 
excluded  in  every  case,  in  which  her  acts  cannot  be  referred 
to  an  authority,  express  or  implied,  from  her  husband.* 
Hence,  too,  all  debts  and  charges  are  incurred  by  the  hus- 
band. The  community  ceases  on  the  termination  of  marriage 
by  mutual  separation  or  the  death  of  either  spouse.^  And 
the  various  codes  provide  for  the  rights  of  the  survivor  on 
the  legal  dissolution  of  the  community  by  death. 

1  1  Burge  Col.  &  For.  Laws,  277  et  seg. 

2  lb.  281,  282.  By  the  French  law  only  the  personal  estate  entered  into  the 
community;  but  the  Spanish  law  included  both  real  and  personal  estate.  Child- 
ress V.  Cutter,  16  Mis.  24. 

3  lb.  294.  *  lb.  296,  301.  5  ib.  303.  305. 


INTRODUCTORY.  *  15 

The  reader  may  readily  trace  the  influence  of  the  commu- 
nity system  upon  the  jurisprudence  of  Louisiana  and  the  other 
States  to  which  we  have  referred,  by  examining  their  judicial 
reports.  The  civil  code  of  Louisiana,  as  amended  and  promul- 
gated in  1824,  pronounced  that  the  partnership  or  community 
of  acquets  or  gains  arising  during  coverture  should  exist  in 
every  marriage  where  there  was  no  stipulation  to  the  contrary. 
This  was  a  legal  consequence  of  marriage  under  the 
Spanish  *law.i  The  statutes  of  Texas,  Florida,  ]\Iis-  *16 
souri,  California,  and  other  States,  are  characterized  by 
similar  features.  But  all  of  these  laws  have  been  modified 
by  settlers  bringing  with  them  the  principles  of  the  common 
law.  So  the  doctrines  of  separate  estate,  revived  in  modern 
jurisprudence,  are  introduced  into  the  legislation  of  these,  as 
other  American  States.^ 

The  American  community  doctrine,  as  we  may  term  it,  is 
that  all  property  purchased  or  acquired  during  marriage,  by 
either  husband  or  wife,  or  both,  shall  be  deemed  to  belong 
pri7na  facie  to  the  community,  and  be  held  liable  for  the  com- 
munity debts  accordingly.  The  husband,  being  the  head  of 
the  family,  has  the  right  to  administer  or  control  this  prop- 
ert}- ;  and  hence  not  only  may  he  sell  and  dispose  of  any  por- 
tion of  it  during  marriage,  but  it  is  rendered  primarily  liable 
for  all  debts  contracted  by  him  during  marriage,  and  for  debts 
for  necessaries  contracted  by  the  wife  during  the  same  period. 
He  may  enjoy  the  income  of  the  property  likewise.  Upon  the 
dissolution  of  marriage  by  death,  this  community  property 
goes,  after  payment  of  all  community  debts,  as  generally 
regulated,  to  the  survivor,  if  the  deceased  leaves  no  descend- 
ant ;  otherwise,  one-half  to  the  survivor  and  one-half  to  the 
descendants. 

But  it  will  be  perceived  that  in  these  codes  community, 
as  an  incident  to  marriage  property,  is  only  a  presumption, 
which  may  be  overcome  in  any  instance  by  proof  that  the 
property  was  acquired  as  the  separate  estate  of  either  the 

1  Art.  2312,  2369,  2370.     2  Kent  Com.  183  n. 

2  Texas  Digest,  Paschal,  "  Marital  Rights ; "  Cal.  Civil  Code,  "  Husband  & 
Wife  ;  "  Parker's  Cal.  Dig.  "  Husband  &  Wife  ;  "  Walker  v.  Howard,  3-1  Tex. 
478  ;  Caulk  v.  Picou,  23  La.  Ann.  277.     And  see  Forbes  t;.  Moore,  32  Tex.  195. 

[15] 


*  16  INTRODUCTORY. 

husband  or  wife.  This  community  rule,  moreover,  as  it  is  evi- 
dent, does  not  apply  to  the  property  which  either  husband  or 
wife  brought  into  the  marriage  ;  such  property,  by  the  codes, 
being  distinctly  kept  to  each  spouse  apart,  as  his  or  her  separate 
property.  And,  besides,  it  is  now  usually  provided  by  legis- 
lation that  property  acquired  during  marriage,  "  by  gift,  be- 
quest, devise,  or  descent,"  with  the  rents,  issues,  and  profits 
thereof,  shall  be  separate,  not  common  property.  The  ten- 
dency, then,  in  our  States,  where  the  law  of  community  still 
exists  —  though  all  have  not  proceeded  in  legislation  to  the 
same  length  —  is  to  limit  rather  than  extend  its  apphcation. 

The  wife  has  a  tacit  mortgage  for  her  separate  property,  so 
far  as  the  law  may  have  placed  it  in  her  husband's  control ; 
also  upon  the  community  property  from  the  time  it  went  into 
his  hands ;  so  that,  notwithstanding  his  conveyance  without 
her  consent  and  to  her  injury,  during  the  marriage,  she  has 
an  interest,  and  not  a  mere  hope  or  expectancy  left,  which 
interest  becomes  absolute  and  enforceable  at  his  death,  she 
surviving  him.  In  this  respect  our  codes  follow  the  Spanish 
rather  than  the  French  law.  And  for  the  wife's  further  pro- 
tection and  benefit,  judicial  intervention  is  sometimes  per- 
mitted, not  only  to  secure  her  support  from  the  funds  in  her 
husband's  control,  while  marriage  continues,  but  for  a  separa- 
tion of  the  common  property  altogether,  where  her  interests 
are  exposed  to  great  hazard  by  his  mismanagement.  The 
tendency  of  the  courts  and  legislatures  is  to  make  community 
property  liable  for  community  debts  alone,  and  separate  prop- 
erty of  the  wife  for  her  separate  debts  alone. 

jNlore  than  this,  agreements  for  a  separation  of  property 
between  husband  and  wife  are  now  greatly  favored  ;  and  gifts 
for  the  wife's  benefit,  made  after  as  well  as  before  the  mar- 
riage ;  so  long,  at  least,  as  they  do  not  tend  to  impair  con- 
jugal rights  of  the  husband  pertaining  to  wife  and  children, 
nor  seek  to  alter  the  legal  orders  of  descent.  A  husband  may 
now  make  a  grant  or  gift  of  community  or  of  his  separate 
property  to  his  wife,  without  the  intervention  of  trustees ;  or 
they  may  stipulate  that  there  shall  be  no  community  between 
them  ;  and  their  matrimonial  regulations  are  hberally  upheld, 
if  not  contrar}'-  to  good  morals,  it  being  always  understood 
[16] 


INTRODUCTORY.  *  16 

that  they  conform  to  such  formalities  as  the  code  may  have 
imposed  upon  them.^ 

On  the  whole,  there  is  in  the  doctrine  of  community  much 
that  is  fair  and  reasonable ;  but  in  the  practical  workings  of 
this  system  it  is  found  rather  complicated  and  perplexing, 
and  hence  unsatisfactory ;  while  in  no  part  of  the  United 
States  can  it  be  said  to  exist  at  this  day  in  full  force,  since 
husband  and  wife  are  left  pretty  free  to  contract  for  the 
separate  enjoyment  of  property,  and  so  exclude  the  legal  pre- 
sumption of  community  altogether.^ 

"WTiat  are  familiarly  known  as  the  "  married  women's  acts," 
the  product  of  American  legislation  during  the  last  quarter  of 
a  century,  aim  to  secure  to  the  wife  the  independent  control  of 
her  own  property,  and  the  right  to  contract,  sue,  and  be  sued, 
without  her  husband,  under  reasonable  limitations.  These 
acts,  therefore,  substitute  in  a  great  measure  the  civil  for  the 
common  law.  Three  propositions  may  be  laid  down  at  this 
transition  period.  First.  That  the  common  law,  in  denying 
to  the  wife  the  rights  of  ownership  in  property  acquired  by 
gift,  purchase,  bequest,  or  otherwise,  did  her  injustice,  and 
that  a  radical  change  became  necessary.  This  is  shown,  not 
only  in  the  legislation  of  our  States,  buf  by  the  fact  that  the 
equity  tribunals  have  gradually  moulded  the  unwritten  law 
of  England  so  as  to  secure  like  results.  Second.  That  the 
courts  of  England  and  the  American  States  (with  scarcely  an 
important  exception)  agree  in  regarding  the  wife's  separate 
property  rights  as  contrary  to  rule  :  in  other  words,  that  they 
require  her  in  each  case  to  rebut  the  presumption  that  what- 
ever she  acquires  vests  in  the  husband,  and  to  establish  a 
distinct  ownership.  Tliird.  That  as  to  rights  of  the 
person,  or  what  are  sometimes  *  contrasted  with  civil  as    *  17 

1  Murrison  v.  Seiler,  22  La.  Ann.  327 ;  Smith  v.  Boquet,  27  Tex.  507 ;  Texas, 
Louisiana,  and  California  Codes,  supra;  Succession  of  Wade,  21  La.  Ann.  343; 
Peck  V.  Brummagim,  31  Cal.  440;  Warfield  v.  Bobo,  21  La.  Ann.  466. 

2  See  Packard  v.  Arellanes,  17  Cal.  525 ;  Waul  v.  Kirknian,  25  Miss.  609 ; 
Succession  of  McLean,  12  La.  Ann.  222;  Jones  v.  Jones,  15  Tex.  143;  Ex  parte 
Melbourn,  L.  R.  6  Ch.  64  ;  1  Burge  Col.  &  For.  Laws,  277  et  seq.,  where  the  law  of 
community  as  it  was  about  half  a  century  ago  is  fully  set  forth ;  and  the  leirned 
note  to  2  Kent  Com.  183. 

2         .  [  IT  ] 


*  17  INTRODUCTORY. 

moral  lii^lits,  no  essential  changes  are  wanted ;  the  property- 
rights  of  married  women  coming  alone  within  the  scope  of 
a  sweeping  reform.  In  this  respect  the  peculiarities  of  the 
civil  code  are  regarded ;  for  as  to  the  conjugal  duties  of 
adherence,  obedience,  protection,  maintenance  and  support, 
power  of  correction,  and  the  like,  it  furnished  little  that  the 
common  law  has  not  either  recognized  from  the  earliest  times 
or  else  gradually  improved  upon.^ 

The  danger  to  be  apprehended  from  all  legislation  of  this 
sort  is  that  it  will  weaken  the  ties  of  marriage,  by  forcing 
both  sexes  into  an  unnatural  antagonism  ;  teaching  them  to 
be  independent  of  one  another,  and  to  earn  their  own  living 
apart ;  whereas  God's  law  points  to  family  and  the  mutual 
intercourse  of  man  and  woman  as  among  the  strongest  safe- 
guards of  human  happiness.  Where  one  pursues  the  objects 
of  personal  ambition,  the  intellect  must  soon  predominate  over 
the  affections.  Wandering  out  of  her  sphere  of  action,  woman 
soon  finds  herself  the  object  of  affront  instead  of  admiration ; 
for,  whatever  triumphs  Art  may  achieve.  Nature  to  the  last 
remains  the  stronger.  Trials  we  aU  have  ;  we  may  make  them 
subservient  to  high  purposes,  yet  they  remain  to  gall  us  to 
the  last ;  and  if  it  be  wrong  to  murmur  at  the  impediments 
of  physical  infirmity,  ft  is  supreme  folly  to  chafe  and  fret  and 
struggle  continually  against  the  fetters  of  sex.  In  England, 
the  rights  of  married  women  have  been  gradually  enlarged, 
and  that,  too,  by  judicial  construction  rather  than  statute ,  the 
law  still  holding  fast  to  the  stability  of  the  marriage  relation. 
With  us,  each  Gordian  knot  is  cut  in  twain  by  legislative 
enactment,  and  the  courts  have  only  to  look  on  in  bewilder- 
ment. When  husband  and  wife  can  once  be  made  to  under- 
stand their  respective  bounds,  they  will  doubtless  respect 
them  ;  but  so  long  as  their  rights  remain  in  confusion  and 

perplexity,  collisions  must  constantly  occur,  and  domes- 
*  18    tic  peace  remain  in  constant  jeopardy.     *  Add  to  this 

loose  divorce  laws,  loosely  administered,  and  can  it  be 
said  that  the  marriage  relation  is  encouraged  and  fostered 
bv  the  State  ?     That  it  should  be  admits  of  no  question. 

1  See  as  to  civil  law,  1  Burge  Col.  &  For.  Laws,  202. 

[18] 


INTRODUCTORY.  *  18 

Our  legislation  regarding  the  rights  of  married  women 
should  then  be  harmonized  and  simplified  as  soon  as  practica- 
ble. This  is  not  easy  with  so  many  independent  States,  each 
carving  out  its  own  career.  Our  difficulty  is  aggravated  from 
the  fact  that  the  married  women's  acts  had  no  common  oriain  : 
there  was  no  model  found  to  work  from,  English  or  Ameri- 
can, and  the  results  were  necessarily  discordant.  Yet  should 
public  sentiment  once  set  in  the  right  direction,  much  might 
be  accomplished  at  no  distant  day. 

If,  too,  the  married  women's  codes  of  this  country  are  to 
serve  as  a  guide  to  other  nations,  they  should  bear  the  impress 
of  a  clear  and  well-detined  purpose.  Either  the  ultimate 
object  should  be  to  place  the  wife  on  an  independent  footing, 
and  enable  her  to  maintain  herself  against  the  world,  or  else, 
providing  honorably,  faithfully,  and  generously  against  all  pos- 
sible misfortune,  to  teach  her  still  to  lean  upon  the  stronger 
arm  of  her  husband,  and  look  to  man  for  guidance.  But  our 
legislators  sometimes  appear  to  attempt  both  systems  together, 
as  if  goaded  on  by  the  gadfly  of  feminine  persistency.  Laws 
which  invite  married  women  to  embark  in  separate  trade,  tend 
plainly  to  the  wife's  independence.  Laws,  on  the  other  hand, 
which  class  widows  and  orphans  together  as  subjects  for 
special  protection,  preserve  homestead  exemptions,  permit  of 
settlements  against  the  husband's  creditors,  are  founded  on 
the  policy  of  the  wife's  dependence.  It  is  not  to  be  presumed 
that  frank  and  straightforward  discussion  is  inapj^rojiriate  to 
any  topic  where  radical  changes  are  demanded ;  nor  can  the 
fundamental  relation  of  the  sexes  and  the  balance  of  society 
be  lightly  disturbed.  Equality  and  freedom  are  precious 
words ;  but  if  the  respective  spheres  of  man  and  woman  are 
equally  honorable,  equally  useful,  equally  free,  need 
*  they  be  precisely  identical  ?  Does  not  inequality  *  19 
manifest  itself  when  the  two  seek  to  run  the  same  cir- 
cuit ?  As  a  logical  proposition,  if  woman  in  her  pursuits  has 
the  right  to  become  a  man,  man  has  no  less  the  right  to  become 
a  woman.  Whether  the  change  would  be  expedient  and 
wise,  however,  is  another  question.  Certain  it  is  that  woman 
cannot  claim  the  privileges  of  the  two  sexes ;  if  she  would 
grasp  at  civil  honors  she  must  surrender  her  time-honored 

[19] 


*  19  INTRODUCTORY. 

tribute  of  chivalrous  homage.  Our  people  can  afford  to  -u-ait ; 
and,  leaving  the  burden  of  proof  upon  those  who  would  falsify 
all  the  teachings  of  human  experience,  and  gain  for  woman  a 
foothold  in  an  untried  sphere  of  action,  the  legislator  need 
not  feel  called  upon  to  press  forward  with  new-fashioned 
privileges  in  the  spirit  of  old-fashioned  politeness,  before  he  is 
assured  that  they  are  either  desired  or  desirable. 

A  calm  and  dispassionate  investigation  of  many  acts  shows 
that  the  common-law  disabilities  of  the  wife  have  been  more 
carefully  pruned  than  those  of  the  husband.     Some  legislative 
changes  in  favor  of  the  latter  are  desirable.     Thus  the  common 
law  obliged  the  husband  to  pay  his  wife's  antenuptial  debts, 
because  he  might  have  received  a  fortune  by  her;  if  then  she 
retains  her  property,  notwithstanding  the  marriage,  this  liabil- 
ity on  his  part  should  not  continue.     Again,  it  is  possible  that 
the  husband,  in  some  States,  has  lost  his  tenancy  by  the  cur- 
tes}^  in  his  wife's  lauds ;  if  so,  is  there  any  reason  why  the  wife 
should  retain  a  dower  interest  in  her  husband's  lands  ?     So, 
too,  compensation  was  formerly  recoverable  by  the  husband 
for  injuries  sustained  by  the  wife,  while  on  the  other  hand  he 
was  compelled  to  respond  in  damages  for  her  misconduct ; 
many  statutes  now  give  compensation  to  the  injured  wife  for 
her  injuries,  yet  the  husband  must  respond  for  her  ill-behavior 
as  before.     Xor  is  it  clear  that  where  a  married  woman  being 
of  ample  means  retains  her  property  independently  of  her 
husband,  while  his  income  continues  slender,  he  ought  to  be 
held  as  strictly  liable  for  her  necessaries  as  in  the  days 
*  20    when  the  beneficial  *  enjoyment  of  her  proj)erty  would 
have  vested  absolutely  in  him.^ 
But  perhaps  the  worst   that  can  be  said   of  the  married 
women's  acts  in  their  present  state,  is  the  constant  temptation 
they  hold  out  to  fraud  and  perjury.     If  the  wife  can  ever  be 
made  a  willing  party  to  dishonorable  transactions,  it  is  when 
the  husband  seeks  her  protection  against  his  own  creditors. 
A  large  proportion  of  the  cases  which  have  arisen  under  the 
married  women's  acts  involve  secret  transfers  of  property 
between  husband  and  wife,  made  for  the  purpose  of  defeating 

1  lu  8ome  States,  particularly  as  to  antenuptial  debts,  the  desired  legislation 
is  supplied;  in  others  it  is  wanting. 

[20] 


INTRODUCTORY.  *  20 

the  payment  of  just  debts  ;  and  in  not  a  few  of  these  cases 
the  courts  seem  to  have  connived  at  what  they  probably  con- 
sidered a  sort  of  pious  fraud.  Every  American  lawyer  of 
moderate  professional  experience  knows  that  it  is  now  quite 
common  for  men  when  straitened  to  turn  their  property  over 
to  their  wives,  and  thus,  if  not  avoiding  justice  altogether,  at 
least  hoping  to  bring  creditors  to  their  own  terms.  Where 
solemn  instruments  are  dispensed  with,  and  the  ownership  of 
property  as  between  husband  and  wife  is  a  mere  matter  of 
circumstantial  evidence,  such  transfers  are  easily  effected,  and 
the  capital  of  one  may  furnish  credit  for  the  other.  Let  us 
not  forget  that  the  marriage  relation  is  a  close  one,  and  in 
pecuniary  matters  places  two  persons  before  the  world  some- 
what in  the  light  of  partners.  Under  the  common  law  no 
serious  difficulty  could  arise.  The  community  system  recog- 
nizes the  quasi  partnership  liability  distinctly.  And  under 
the  civil  law,  which  our  statutes  profess  to  follow,  while 
husband  and  wife  could  contract  with  each  other  for  a  valu- 
able consideration,  and  could  buy  and  borrow,  sell  and  lend, 
between  themselves,  they  were  absolutely  prohibited  from 
making  mutual  gifts  without  consideration ;  and  so  strict  was 
the  law  in  this  respect  that  all  persons  to  whose  power  they 
were  subject  came  within  the  terms  of  the  prohibition ;  nor 
did  it  matter  that  the  gifts  were  made  through  the  interven- 
tion of  third  persons.  As  it  was  said,  such  gifts  only  should 
be  sustained  between  husband  and  wife  as  "  did  not 
make  the  donor  poorer  and  the  donee  richer."  ^  A  *  strict  *  21 
system  of  registry,  apphed  to  the  wife's  separate  prop- 
erty, might  check  the  frauds  now  justly  complained  of  under 
our  present  statutes. 

Of  the  remaining  topics  to  be  discussed  in  the  present  trea- 
tise, little  need  be  said  by  way  of  general  preface.  These 
have  felt  the  softening  influences  of  modern  civilization.  The 
common-law  doctrine  of  parent  and  child  finds  its  most  im- 
portant modifications  in  the  gradual  admission  of  the  mother 
to  something  like  an  equal  share  of  parental  authority ;  in  the 

1  1  Burge  Col.  &  For.  Laws,  274.  Gifts  causa  mortis  stood  upon  a  different 
footing.     And  see  Paschal's  Texas  Code,  "  Marital  Rights." 

[lil] 


*2l  INTRODUCTORY. 

growth  of  popular  systems  of  education  for  the  j'oung ;  in 
the  enLnrged  opportunities  of  earning  a  livelihood  afforded  to 
the  children  of  idle  and  dissolute  parents  ;  and  in  the  less- 
ened misfortunes  of  bastard  offspring.  Guardian  and  ward, 
a  relation  of  little  importance  up  to  Blackstone's  day,  has 
rapidly  developed  since  into  a  permanent  and  well-regulated 
sj-stem  under  the  supervision  of  the  chancery  courts,  and  in 
this  country  of  the  tribunals  also  with  probate  jurisdiction ; 
and  much  of  the  old  learning  on  this  branch  of  the  law  has 
become  rubbish  for  the  antiquary.  The  law  of  infancy 
remains  comparatively  unchanged.  Of  master  and  servant, 
we  have  spoken. 

We  are  now  to  investigate  in  detail  the  law  of  these  several 
topics.  But  first  the  reader  is  reminded  that  the  office  of  the 
text-writer  is  to  inform  rather  than  invent ;  to  be  accurate 
rather  than  original ;  to  chronicle  the  decisions  of  others,  not 
his  own  desires ;  to  illumine  paths  already  trodden ;  to  criti- 
cise, if  need  be,  yet  always  fairly  and  in  furtherance  of  the 
ends  of  justice  ;  to  analyze,  classify,  and  arrange  ;  from  a 
mass  of  discordant  material  to  extract  all  that  is  useful,  sep- 
arating the  good  from  the  bad,  rejecting  whatever  is  obsolete, 
searcliing  at  all  times  for  guiding  principles  ;  and,  in  fine,  to 
emblazon  that  long  list  of  judicial  precedents  through  wliich 
our  Anglo-Saxon  freedom  "  broadens  slowly  down." 


[22] 


*PAET   II.  *22 

HUSBAND    AND    WIFE. 


CHAPTER   I. 

MARRIAGE. 

The  word  "  marriage  "  signifies,  in  the  first  instance,  that  act 
by  which  a  man  and  woman  unite  for  life,  with  the  intent  to 
discharge  towards  society  and  one  another  those  duties  which 
result  from  the  relation  of  husband  and  wife.  The  act  of 
union  having  been  once  accomplished,  the  word  comes  after- 
wards to  denote  the  relation  itself. 

It  is  frequently  said  in  the  courts  of  this  country  that  mar- 
riage is  nothing  more  than  a  civil  contract.  That  it  is  a  con- 
tract is  doubtless  true,  to  a  certain  extent,  since  the  law 
always  presumes  two  parties  of  competent  understanding  who 
enter  into  a  mutual  agreement,  which  becomes  executed,  as 
it  were,  by  the  act  of  marriage.  But  this  agreement  differs 
essentially  from  all  others.  This  contract  of  the  parties  is 
simply  to  enter  into  a  certain  status  or  relation.  The  rights 
and  obligations  of  that  status  are  fixed  by  society,  in  accord- 
ance with  principles  of  natural  law,  and  are  beyond  and  above 
the  parties  themselves.  They  may  make  settlements  and 
regulate  the  property  rights  of  each  other ;  but  they  cannot 
modify  the  terms  upon  which  they  are  to  live  togetlier,  nor 
superadd  to  the  relation  a  single  condition.  Being  once 
bound  they  are  bound  for  ever.  Mutual  consent,  as  in  all 
contracts,  brings  them  together  ;  but  mutual  consent  cannot 
part  them.  Death  alone  dissolves  the  tie,  —  unless  the 
legislature,  in  the  exercise  of  a  rightful  authority,  inter- 
poses *  by  general  or  special  ordinance  to  pronounce  a  *  23 
solemn  divorce ;  and  this  it  should  do  only  when  the 

[23] 


*  23  HUSBAND   AND  "WIFE. 

grossly  immoral  conduct  of  one  contracting  party  brings 
unmerited  shame  upon  the  other,  disgraces  an  innocent  off- 
spring, aud  inflicts  a  wound  upon  the  community.  So  in 
other  respects  the  law  of  marriage  differs  from  that  of  ordinary 
contracts.  For  as  concerns  the  parties  themselves,  mental 
capacity  is  not  the  only  test  of  fitness,  but  physical  capacity 
likewise ;  a  new  element  for  consideration  no  less  important 
than  the  other.  Again  the  encumbrance  of  an  existing  union 
operates  here  as  a  special  disquahfication.  Blood  relationship 
is  another.  So  too  an  infant's  capacity  is  treated  on  peculiar 
principles,  as  far  as  the  marriage  contract  is  concerned,  for  he 
can  marry  young  and  be  bound  by  his  marriage.  Interna- 
tional law  relaxes  its  usual  requirements  in  favor  of  marriage. 
And  finally  the  formal  celebration  now  prevalent,  both  in 
England  and  America,  is  something  peculiar  to  the  marriage 
contract ;  and  in  its  performance  we  see  but  the  faintest 
analogy  to  the  execution  and  delivery  of  a  sealed  instrument. 
We  are  then  to  consider  marriage,  not  as  a  contract  in  the 
ordinary  acceptation  of  the  term ;  but  as  a  contract  sici  generis, 
if  indeed  it  be  a  contract  at  all ;  as  an  agreement  to  enter  into 
a  solemn  relation  which  imposes  its  own  terms.  On  the  one 
hand  discarding  the  unwarranted  dogmas  of  the  Church  of 
Rome  by  which  marriage  is  elevated  to  the  character  of  a 
sacrament,  on  the  other  we  rejaucliate  that  dry  definition  with 
which  the  laAv-giver  or  jurist  sometimes  seek  to  impose  upon 
tlie  natural  instincts  of  mankind.  We  adopt  such  views  as 
the  distinguished  Lord  Robertson  held.^  And  Judge  Story 
observes  of  marriage:  "It  appears  to  me  something  more  than 
a  mere  contract.  It  is  rather  to  be  deemed  an  institution  of 
society,  founded  upon  the  consent  and  contract  of  the  parties ; 
and  in  this  view  it  has  some  peculiarities  in  its  nature,  char- 
acter, operation,  and  extent  of  obligation,  different  from 

*  2-i    what  belongs  to  *  ordinary  contracts."  ^      So  Fraser, 

while  defining  marriage  as  a  contract,  adds  in  forcible 
language  :  "  Unlike  other  contracts,  it  is  one  instituted  by 
God  himself,  and  has  its  foundation  in  the  law  of  nature.  It 
is  the  parent,  not  the  child,  of  civil  societ3^"  ^     And  we  may 

1  Duntze  v.  Levett,  Ferg.  68,  385,  397 ;  3  Eng.  Ec.  360,  495,  502. 

2  Storv  Confl.  Laws,  §  108  ».  3  1  Fras.  Dom.  Rel.  87. 

[24] 


MARRIAGE.  *  ^4 

acid  that  a  recent  American  text-writer,  of  high  repute,  not 
only  pronounces  for  this  doctrine,  after  a  careful  examination 
of  all  the  c^uthorities,  but  ascribes  the  chief  embarrassment  of 
American  tribunals  in  questions  arising  under  the  conflict  of 
marriage  and  divorce  laws,  to  the  custom  of  applying  the 
rules  of  ordinary  contracts  to  the  marriage  relation.^ 

A  distinction  is  made  at  law  between  void  and  voidable 
marriages.  This  distinction,  which  appears  to  have  originated 
in  a  conflict  between  the  English  ecclesiastical  and  common- 
law  courts,  is  first  announced  in  a  statute  passed  during  the 
reign  of  Henry  VIII. ;  and  it  is  also  to  be  found  in  succeeding 
marriage  and  divorce  acts  down  to  the  present  day.  The 
distinction  of  void  and  voidable  applies  not  to  the  legal  con- 
sequences of  an  imperfect  marriage,  once  formally  dissolved, 
but  to  the  status  of  the  parties  and  their  offspring  before  such 
dissolution.  A  void  marriage  is  a  mere  nullity,  and  its  valid- 
ity may  be  impeached  in  any  court,  whether  the  question 
arise  directly  or  collaterally,  and  whether  the  parties  be  living 
or  dead.  But  a  voidable  marriage  is  valid  for  all  civil  pur- 
poses until  a  competent  tribunal  has  pronounced  the  sentence 
of  nullity,  upon  direct  proceedings  instituted  for  the  purpose 
of  setting  the  marriage  aside.  When  once  set  aside,  the 
marriage  is  treated  as  void  ah  initio  ;  but  unless  the  suit  for 
nullity  reaches  its  conclusion  during  the  lifetime  of  both 
parties,  all  proceedings  fall  to  the  ground,  and  both  survivor 
and  offspring  stand  as  well  as  though  the  union  had  been 
lawful  from  its  inception.^  Hence  we  see  that  while  a 
void  marriage  makes  cohabitation  at  all  times  *  unlaw-  *  25 
ful,  and  bastardizes  the  issue,  a  voidable  marriage  pro- 
tects intercourse  between  the  parties  for  the  time  being,  fur- 
nishes the  usual  incidents  of  survivorship,  such  as  curtesy  and 
dower,  and  encourages  the  propagation  of  children.  But  the 
moment  the  sentence  of  nullity  is  pronounced  the  shield  of 
the  law  falls,  the  incidents  vanish,  and  innocent  offspring  are 
exposed  to  the  world  as  bastards  ;  and  herein  is  the  greatest 
hardship  of  a  voidable  marriage. 

1  1  Bish.  Mar.  &  Div.  5th  ed.  §  18.     And  see  Adams  v.  Palmer,  51  Me.  480. 

2  Stat.  32  Hen.  8,  c.  38.     See  1  Bish.  Mar.  &  Div.  5th  ed.  §  108  et  seq. 

[25] 


*  25  HUSBAND   AND   WIFE. 

The  old  rule  is  that  civil  disabilities,  such  as  idioc)^  and 
fraud,  render  a  marriage  void;  while  the  canonical  impedi- 
ments, such  as  consanguinity  and  impotence,  makent  voidable 
only.  This  test  vras  never  a  clear  one,  and  it  has  become  of 
little  practical  consequence  at  the  present  day.  Statutes  both 
in  England  and  America  have  greatly  modified  the  ancient 
law  of  valid  marriages,  and  it  can  only  be  affirmed  in  general 
terms  that  the  legislative  tendency  is  to  make  marriages  void- 
able rather  than  void,  wherever  the  impediment  is  such  as 
might  not  have  been  readily  known  to  both  parties  before 
marriage  ;  and  where  public  policy  does  not  rise  superior  to 
all  considerations  of  private  utility.  Modern  civilization 
strongly  condemns  the  harsh  doctrine  of  ah  initio  sentences  of 
nullity ;  and  such  sentences  have  now  in  general  a  prospec- 
tive force  only,  in  order  that  rights  already  vested  may  remain 
unimpaired,  and,  still  more,  that  children  may  not  suffer  for 
the  follies  of  their  parents.^ 

We  shall  briefly  consider  in  this  chapter  that  act  by  which 
parties  unite  in  matrimony,  —  for  to  this  the  term  "  marriage  " 
is  most  frequently  applied.  It  may  be  stated  generally  that,  in 
order  to  constitute  a  perfect  union,  the  contracting  parties 
should  be  two  persons  of  the  opposite  sexes,  without  disquali- 
fication of  blood  or  condition,  both  mentally  competent  and 

physically  fit  to  discharge  the  duties  of  the  relation, 
*  26    neither  of  *  them  being  bound  by  a  previous  nuptial 

tie,  neither  of  them  withholding  a  free  assent ;  and  the 
expression  of  their  mutual  assent  should  be  substantially  in 
accordance  with  the  prescribed  forms  of  law.  These  are  the 
essentials  of  marriage.  Hence  we  are  to  treat  of  the  follow- 
ing topics  in  connection  with  the  essentials  of  a  valid  marriage  : 
first,  the  disqualification  of  blood  ;  second,  the  disqualification 
of  social  condition ;  third,  mental  capacity  ;  fourth,  physical 
capacity  ;  fifth,  the  disqualification  of  infancy,  which  in  reality 
is  based  upon  united  considerations  of  mental  and  physical 
unfitness ;  sixth,  prior  marriage  undissolved  ;  seventh,  fraud, 

1  Shelf.  Mar.  &  Div.  154;  ib.  479-484  ;  1  Bl.  Com.  434 ;  1  Bish.  Mar.  &  Dir. 
5th  ed.  §§  105-120.  See  Stat.  5  &  6  Will.  4,  c.  54 ;  2  N.  Y.  Rev.  Sts.  139,  §  6 ; 
Mass.  Gen.  Sts.  c.  106,  §  4 ;  Pingree  v.  Goodrich,  41  Vt.  47. 

[26] 


MARRIAGE.  *  26 

force,  and  error ;  eighth,  the  formal  celebration  of  a  marriage, 
under  which  last  head  may  be  also  included  the  consent  of 
parents  or  guardians,  not  to  be  deemed  an  essential,  except  in 
conformity  with  the  requirements  of  the  marriage  celebration 
acts.  These  essentials  all  have  reference  solely  to  the  time, 
place,  and  circumstances  of  entering  into  the  marriage  rela- 
tion, and  not  to  any  subsequent  incapacity  of  either  party. 

And,  first,  as  to  the  disqualification  of  blood.     On  no  point 
have  writers  of  all  ages  and  countries  been  more  united  than 
in  the  conviction  that  nature  abhors,  as  vile  and  unclean,  all 
•sexual  intercourse  between  persons  of  near  relationship.    But 
on  few  subjects  have  they  differed  so  widely  as  in  the  appli- 
cation of  this  conviction.     Among  Eastern  nations,  since  the 
daj-s  of  the  patriarchs,  practices  have  prevailed   which   to 
Christian  nations  and  in  days  of  civilized  refinement,  seem 
shocking  and  strange.     The  difficulty  then  is,  not  in  discover- 
ing that  there  is  some  prohibition  by  God's  law,  but  in  ascer- 
taining how  far  that   prohibition  extends.      This   difficulty 
is  manifested   in  our   language   by   the  use  of  two  terms: 
consanguinity  and  affinity;  one   of  which  covers  the  terra 
firma  of  incestuous   marriages,   the   other   offers   debatable 
ground.      The   disqualification  of   consanguinity   applies   to 
marriages  between  blood  relations  in  the  lineal  or  ascending 
and  descending  lines.     There  can  be  but  one  opinion 
concerning  the  union  of  relations  *  as  near  as  brother    *  27 
and  sister.     The  limit  of  prohibition  among  remote  col- 
lateral Idndred   has,  however,  been  differently  assigned  in 
different  countries.     The  English  canonical  rule  is  that  of  the 
Jewish  law.     The  Greeks  and  Romans  recognized  like  prin- 
ciples, though  with  various  modifications  and  alterations  of 
opinion.     But  the  church  of  the  Middle  Ages  found  in  the 
institution  of  marriage,  once  placed  among  the  sacraments,  a 
most  powerful  lever  of  social  influence.     The  English  ecclesi- 
astical courts  made  use  of  this  disqualification,  extending  it 
to  the  seventh  degree  of  canonical  reckoning  in  some  cases, 
and  beyond  all  reasonable  bounds.     So  intolerable  became 
this  oppression,  that  statutes  passed  in  the  time  of  Henry  VIII. 
forbade  these  courts  thenceforth  to  draw  in  question  mar- 
riages without  the  Levitical  degree,  "  not  prohibited  by  God's 

[27] 


*  27  HUSBAND  AND  WIFE. 

law."  1  Under  these  statutes,  wliicli  are  still  essentially  in 
force  in  England,  the  impediment  has  been  treated  as  extend- 
ing to  the  third  degree  of  the  civil  reckoning  inclusive ;  or 
in  other  words,  so  as  to  prohibit  all  marriages  nearer  than 
first  cousins.  Archbishop  Parker's  table  of  degrees,  which 
recognizes  this  limit,  has  been,  since  1563,  the  standard 
adopted  in  the  English  ecclesiastical  courts.^  The  statute 
prohibition  includes  legitimate  as  well  as  illegitimate  children, 
and  half-blood  kindred  equally  with  those  of  the  whole  blood. 
But  the  Enghsh  law  goes  even  further,  and  places  affin- 
ity on  the  same  footing  as  consanguinity  as  an  impediment.* 
Affinity  is  the  relationship  which  arises  from  marriage  between 
a  husband  and  his  wife's  kindred,  and  vice  versa.  It  is  shown 
that  while  the  marriage  of  persons  allied  by  blood  produces 
offspring  feeble  in  body  and  tending  to  insanity,  that  of 
persons  connected  by  affinity  leads  to  no  such  result ;  and 
further,  that  consanguinity  has  been  everywhere  recognized 
as  an  impediment,  but  not  affinity.     The  worst  that  can 

*  28    probably  be  said  of  the  latter  *  is,  that  it  leads  to  con- 

fusion of  domestic  rights  and  duties.  No  question  has 
been  discussed  with  more  earnestness  in  both  England  and 
America,  with  less  positive  result,  than  one  which  turns 
upon  this  very  distinction;  namely,  whether  a  man  may 
marry  his  deceased  wife's  sister.  This  question  has  received 
a  favorable  response  in  Vermont.^  But  in  England  such 
marriages  are  still  deemed  incestuous,  and  within  the  pro- 
hibition of  God's  law."^ 

Marriages  within  the  forbidden  degrees  of  consanguinity 
were  formerly  voidable  only  in  English  law  ;  but  by  modern 
statutes  they  have  been  made  null  and  void.  In  this  country 
they  are  generally  pronounced  void  by  statute,  and  the  offend- 

1  Stat.  32  Hen.  8,  c.  38 ;  see  Bish.  Mar.  &  Div.  5th  ed.  §§  106,  107 ;  2  Kent 
Com.  82,  83 ;  Shelf.  Mar.  &  Div.  163  et  seq. ;  Wing  v.  Taylor,  2  Swab.  &  T.  278, 
295. 

2  1  Bish.  Mar.  &  Div.  5th  ed.  §  318;  Butler  v.  Gastrill,  Gilb.  Ch.  156. 

3  Blodget  V.  Bruismaid,  9  Vt.  27  ;  and  see  1  Bish.  Mar.  &  Div.  5th  ed.  §  31-1  ; 
Paddock  v.  Wells,  2  Barb.  Ch.  331. 

«  Hill  V.  Good,  Vaugh.  302 ;  Harris  v.  Hicks,  2  Salk.  548 ;  Shelf.  Mar.  &  Div. 
pp.  172, 178;  2  Kent  Com.  84,  note,  and  authorities  cited;  Reg.  v.  Chadwick,  12 
Jur.  171;  11  Q.  B.  173. 

[28] 


MARRIAGE.  ♦  28 

ing  parties  are  liable  to  imprisonment.  But  with  regard  to  mar- 
riages among  relatives  by  affinity,  the  rule  is  not  so  stringent 
as  in  England.^ 

Second,  as  to  the  disqualification  of  social  condition.  Eace, 
color,  and  social  rank  do  not  appear  to  constitute  an  impedi- 
ment to  marriage  at  the  common  law,  nor  is  any  such  im- 
pediment now  recognized  in  England.^  But  by  local  statutes 
in  some  of  the  United  States,  intermarriage  has  been  dis- 
couraged between  persons  of  the  negro,  Indian,  and  white 
races.^  With  the  recent  extinction  of  slavery,  many  of  these 
laws  have  passed  into  oblivion,  together  with  such  as  refused 
to  allow  to  persons  held  in  bondage  the  rights  of  husband 
and  wife.^  The  thirteenth  *  article  of  amendment  to  *  29 
the  constitution  gives  Congress  power  to  enforce  the 
abolition  of  slavery  "  by  appropriate  legislation."  As  to  per- 
sons formerly  slaves,  there  are  now  acts  of  Congress  which 
legitimate  their  past  cohabitation,  and  enable  them  to  drop 
the  fetters  of  concubinage.  And  the  manifest  tendency  of 
the  day  is  towards  removing  all  legal  impediments  of  rank 
and  condition,  leaving  individual  tastes  and  social  manners  to 
impose  the  only  restrictions  of  this  nature.^ 

Tliird,  as  to  mental  capacity.  No  one  can  contract  a  valid 
marriage  unless  cajDable  at  the  time  of  giving  an  intelligent 
consent.  Hence  the  marriages  of  idiots,  lunatics,  and  all 
others  who  have  not  the  use  of  their  understanding,  are  now 
treated  as  null ;  though  the  rule  was  formerly  otherwise. 
What  degree  of  insanity  will  amount  to  dis.qualification  is  not 

1  2  Kent  Com.  83,  84,  and  notes  ;  1  Bisli.  Mar.  &  Div.  5th  ed.  §§  312-320; 
Regina  v.  Chadvvick,  12  Jur.  174;  Sutton  v.  Warren,  10  Met.  401  ;  Bonliam  v. 
Badgle}',  2  Gilm.  622 ;  Wlglitman  v.  Wiglitnian,  4  Johns.  Ch.  343  ;  Butler  v.  Gas- 
trill,  Glib.  Ch.  156 ;  Burgess  v.  Burgess,  1  Hag.  Con.  384 ;  Blackmore  v.  Brider, 
2  rhillim.  359.     See  Harrison  v.  State,  22  Md.  468. 

•^  1  Bi.sli.  Mar.  &  Div.  5th  ed.  §§  308-311 ;  1  Burge  Col.  &  For.  Laws,  138 

3  See  Bailey  v.  Fiske,  34  Me.  77;  Slate  v.  Hooper,  5  Ire.  201;  State  v. 
Brady,  "J  Humph.  74  ;  Barkshire  v.  State,  7  Ind.  389  ;  1  Bish.  Mar.  &  Div. 
5th  ed.  §§  154-163. 

*  But  marriage  between  whites  and  negroes  is  still  prohibited,  and  even  made 
a  crime  in  certain  States.  See  State  v.  Gibson,  36  Ind.  389 ;  State  r.  Ilairston, 
63  N.  C.  451;  Scott  v.  State,  39  Geo.  321. 

5  Act  July  25,  1866,  c.  240;  Act  June  6,  1866,  c.  106,  §  14.     And  see  15th  . 
Amendment  U.  S.  Const.;  Stewart  v.  Munchaudler,  2  Bush  (Ky.),  278;  State 
V.  Harris,  63  N.  C.  1. 

[29] 


*  29  HUSBAND   AND   WIFE. 

easily  determined ;  so  varied  are  the  manifestations  of  mental 
disorder  at  the  present  day,  and  so  gradually  does  mere  feeble- 
ness of  intellect  shade  off  into  hopeless  idiocy.  Certain  it  is 
that  a  person  may  enter  into  a  vahd  marriage,  notwithstand- 
ing he  has  a  mental  delusion  on  certain  subjects,  is  eccentric 
in  his  habits,  or  is  possessed  of  a  morbid  temperament,  pro- 
vided he  displays  soundness  in  other  respects,  and  can  manage 
his  own  affairs  with  ordinary  prudence  and  skill. ^  Every  case 
stands  on  its  own  merits ;  but  the  usual  test  applied  in  the 
courts  is  that  of  fitness  for  the  general  transactions  of  life  ; 
for,  it  is  argued,  if  a  man  is  incapable  of  entering  into  other 
contracts,  neither  can  he  contract  marriage.^  This  test  is 
sufficiently  precise  for  most  purposes.  Yet  we  apprehend  the 
real  issue   is  whether  the  man  is  capable  of  entering 

*  30    understandingly  into  *  the  relation  of  marriage  ;  for  nat- 

ural impulses  are  so  strong  that  a  man  may  know  well 
the  contract  he  assumes  by  the  act  of  marriage,  while  he  is 
not  equally  fit  to  enter  into  other  engagements.  There  are 
two  questions,  however  :  first,  whether  the  party  understands 
the  marriage  contract ;  second,  whether  he  is  fit  to  perform 
understandingly  the  obligations  which  that  contract  imposes ; 
and  both  elements  might  well  enter  into  the  consideration  of 
each  case. 

Marriasre  contracted  during  a  lucid  interval  is  at  law  deemed 
valid ;  ^  but  the  English  statute  provides  that  such  marriages 
are  void  when  a  commission  of  lunacy  has  once  been  taken 
out  and  remains  unrevoked.^  Similar  provisions  are  to  be 
found  in  some  of  our  States.  On  the  other  hand,  marriage 
contracted  by  a  person  habitually  sane,  during  temporary  in- 
sanity, is  unquestionably  void.°     And  upon  the  principle  of 

1  2  Kent  Com.  76;  Browning  i-.  Reane,  2  Phillim.  69;  1  Bish.  Mar.  &  Div. 
5th  ed.  §§  124-142 ;  Turner  v.  Meyers,  1  Hag.  Con.  414 ;  4  Eng.  Ec.  440 ;  1  Bl. 
Cora.  438,  439, 

2  Mudway  v.  Croft,  3  Curt.  Ec.  671  ;  Anon.,  4  Pick.  32  ;  Cole  v.  Cole,  5  Sneed, 
57;  Atkinson  v.  Medford,  46  Maine,  610;  Ward  v.  Dulaney,  23  Miss.  410; 
McElroy's  Case,  6  W.  &  S.  461.  See  1  Bish.  Mar.  &  Div.  §  128;  Ex  parte  Glen, 
4  Des.  546;  Hancock  v.  Peaty,  L.  R.  1  P.  &  D.  335. 

3  Shelf.  Mar.  &  Div.  197  ;  1  Bish.  Mar.  &  Div.  §  130. 
*  Stat.  15  Geo.  2,  c.  30,  1742. 

5  Legeyt  v.  O'Brien,  Milward,  325;  Parker  r.  Parker,  2  Lee,  S82;  6  Eng.  Ec. 
165. 

[30] 


MARRIAGE.  *  30 

temporary  insanity,  drunkenness  incapacitates,  if  carried  to 
the  excess  of  delirium  tremens  ;  though  not,  it  A^ould  appear, 
if  the  party  intoxicated  retains  sufficient  reason  to  know  what 
he  is  doing.i  Drunkenness  was  formerly  held  a  bad  plea  ;  for 
the  common  law  permitted  no  one  to  stultify  himself ;  but 
the  modern  rule  is  more  reasonable.  Some  cases  require  that 
fraud  or  unfair  advantage  should  be  shown ;  yet  the  better 
opinion  is  that  even  this  is  unnecessary .^  Deaf  and  dumb 
persons  were  formerly  classed  as  idiots  ;  this  notion,  however, 
is  exploded.  They  may  now  contract  marriage  by  signs.^  Total 
blindness,  or  mere  deafness,  of  course  constitutes  no  incapacity. 
Suits  of  nullity,  brought  to  ascertain  the  facts  of  insanity,  are 
favored  by  law  both  in  England  and  America ;  and  modern 
legislation  discountenances  all  collateral  disputes  in- 
volving questions  so  painful  *  and  perplexing.  "  Though  *  31 
marriage  with  an  idiot  or  lunatic  be  absolutely  void, 
and  no  sentence  of  avoidance  be  absolutely  necessary,"  says 
Chancellor  Kent,  "yet,  as  well  for  the  sake  of  the  good  order 
of  society,  as  for  the  peace  of  mind  of  all  persons  concerned, 
it  is  expedient  that  the  nullity  of  the  marriage  should  be 
ascertained  and  declared  by  the  decree  of  a  court  of  com- 
petent jurisdiction."^  In  many  States  this  is  now  the  only 
course  to  be  pursued,  such  marriages  being  treated  as  void- 
able and  not  void. 

Fourth.  The  question  of  physical  capacity  involves  an  in- 
vestigation of  facts  even  more  painful  and  humiliating  than 
that  of  mental  capacity.  Yet  as  marriage  is  instituted,  in  part 
at  least,  for  the  indulgence  of  natural  cravings  and  with  a 
view  to  propagate  the  human  family,  sound  morality  demands 
that  the  proper  means  shall  not  be  wanting.     Where  impo- 

i  Clement  v.  Mattison,  3  Rich.  93;  1  Bish.  Mar.  &  Div.  6tli  ed.  §  131;  Gore 
V.  Gibson,  13  M.  &  W.  623  ;  2  Kent  Com.  451,  and  authorities  cited  ;  Lord  Ellen- 
borough,  in  Pitt  V.  Smith,  3  Camp.  33.     See  Scott  v.  Paquet,  L.  R.  1  P.  C.  552. 

2  See  1  Bish.  Mar.  &  Div.  5th  ed.  §§  131,  132,  and  conflicting  cases  cited. 
And  see  recent  Delaware  case  of  Elzey  v.  Elzey,  1  Houston,  308. 

8  1  Bish.  Mar.  &  Div.  5th  ed.  §  133,  and  cases  cited  ;  1  Eras.  Dom.  Rcl.  48; 
Dickenson  v.  BHsset,  1  Dickens,  208;  Ilarrod  v.  Harrod,  1  Kay  &  Johns.  4. 

«  2  Kent  Com.  76.  See  1  Bish.  Mar.  &  Div.  5th  ed.  §§  130-142 ;  Crump  v. 
Morgan,  3  Ire.  Eq.  91 ;  Goshen  v.  Richmond,  4  Allen,  458  ;  Hamaker  v.  Ilamaker, 
18  III.  137 ;  Williamson  i;.  Williams,  3  Jones  Eq.  446 ;  Wiser  v.  Lockwood,  42 
Vt.  720. 

[31] 


*  31  HUSBAND   AND   WIFE. 

tence  exists,  there  can  be  no  valid  marriage.  By  this  is  meant 
simply  that  the  sexual  organization  of  both  parties  shall  be 
complete.  But  mere  barrenness  constitutes  no  legal  inca- 
pacity, nor  can  a  physical  defect  which  does  not  interfere  with 
copulation ;  nor  indeed  any  disability  which  is  curable,  even 
though  not  actually  cured,  unless  the  party  disabled  unreason- 
ably refuses  to  submit  to  the  proper  remedies.^  The  necessity 
of  judicial  sentence,  before  such  marriage  can  be  considered 
null,  is  too  obvious  for  argument.^  The  reader  will  find  Dr. 
Lushington's  opinion,  in  the  leading  case  of  Deane  v.  Aveling,^ 
sufficiently  suggestive  as  to  the  extent  of  malformation  which 
invalidates  a  marriage  on  the  ground  of  physical  incapacity. 
We  shall  only  add,  that  with  the  rapid  progress  of  med- 
*32  ical  science  during  the  present  century,  cases  *of  abso- 
lute and  incurable  impotence  are  happily  diminishing  in 
number.* 

Fifth.  Infancy  may  be  an  impediment  to  marriage  ;  but 
only  so  far,  on  principle,  as  the  marrpng  party,  b}^  reason  of 
imperfect  mental  and  physical  development,  may  be  brought 
within  the  reason  of  the  last  two  rules.  Hence  we  find  that 
infancy  is  not  a  bar  to  marriage  to  the  same  extent  as  in 
ordinary  contracts  ;  since  minors  cannot  repudiate  their  choice 
on  reaching  majority.  Not  that  marriage  calls  for  less  dis- 
crimination;  for  it  carries  with  it  consequences  far  beyond 
all  other  contracts,  involving  property  rights  of  the  gravest 
import ;  but  because  public  policy  must  protect  the  marriage 
institution  against  reckless  imprudence.  A  certain  period  is 
established  called  the  age  of  consent,  which  in  England  is 
fixed  at  fourteen  for  males  and  tAvelve  for  females,  a  rule 

1  1  Bish.  Mar.  &  Div.  §§  321-340,  and  cases  cited ;  1  Fras.  Dom.  Eel.  53;  B. 
V.  B.,  28  E.  L.  &  Eq.  95 ;  1  Bl.  Com.  440,  n.  by  Chitty  and  others  ;  Ayl.  Parer. 
227  ;  Devanbagh  v.  Devanbagh,  5  Paige,  554 ;  Essex  v.  Essex,  2  Howell  St.  Tr. 
786 ;  Briggs  v.  Morgan,  3  Phillim.  325.  For  a  case  where  the  disability  was 
possibly  curable,  see  G.  v.  G.,  L.  R.  2  P.  &  D.  287. 

2  See  A.  V.  B.,  L.  R.  1  P.  &  D.  659. 

3  1  Robertson,  279.     And  see  recent  case  of  U.  v.  J.,  L.  R.  1  P.  &  D.  460. 

«  See  recent  cases :  W.  v.  H.,  2  Swab.  &  T.  240 ;  T.  v.  M.,  L.  R.  1  P.  &  D. 
31 ;  T.  V.  J).,  L.  R.  1  P.  &  D.  127 ;  Carll  v.  Prince,  L.  R.  1  Ex.  246.  The  statute 
remedy  in  many  States  for  cases  of  this  sort  is  by  divorce  proceedings.  See  G. 
V.  G.,  33  Md.  401.  And  in  other  instances,  where  decrees  of  nullity  would  ap- 
pear suitable,  our  statutes  permit  of  the  sentence  of  divorce. 

[32] 


MARRIAGE.  ♦32 

adopted  from  the  Roman  law,  but  which,  in  this  country, 
varies  all  the  way  from  fourteen  to  eighteen  for  males,  and 
twelve  to  sixteen  for  females,  according  to  local  statutes  ; 
differences  of  climate  and  physical  temperament  contributing 
doubtless  to  make  the  rule  of  nature  in  this  respect  a  fluctuat- 
ing one.^  Marriages  without  the  age  of  consent  are  as  bind- 
ing as  those  of  adults ;  marriages  within  such  age  may  be 
avoided  by  either  party  on  reaching  the  period  fixed  by  law. 
And  even  though  one  of  the  parties  was  of  suitable  age  and 
the  other  too  young,  at  the  time  of  marriage,  yet  the  former, 
it  appears,  may  disaffirm  as  well  as  the  latter.^  Herein  is 
observed  a  departure  from  that  principle  of  law,  that  an 
infant  *  may  avoid  his  contract  while  the  adult  remains  *  33 
bound*  it  is  a  concession  which  the  law  makes  in  favor 
of  mutuality  in  the  marriage  compacts.  Marriages  celebrated 
before  both  parties  have  reached  the  age  of  consent  may  be 
disaffirmed  in  season,  either  with  or  without  a  judicial  sen- 
tence. When  the  age  of  consent  is  reached,  no  new  ceremony 
is  requisite  to  complete  the  marriage  at  the  common  law  ;  but 
election  to  affirm  will  then  be  inferred  from  circumstances, 
such  as  continued  intercourse,  and  even  slight  acts  may  suffice 
to  show  the  intention  of  the  parties.  If  they  then  choose  to 
remain  husband  and  wife  they  are  bound  for  ever.  Marriage 
within  the  age  of  consent  seems  therefore  to  be  neither 
strictly  void  nor  strictly  voidable,  but  rather  inchoate  and 
imperfect.^ 

Sixth,  as  to  the  impediment  of  prior  marriage  undissolved. 

1  See  2  Kent  Com.  79,  notes,  showing  the  periods  fixed  iu  different  States 
as  the  age  of  consent.  In  tiie  old  States  the  common-law  rule  generallj'^  pre- 
vails. In  Ohio,  Indiana,  and  other  Western  States,  tlie  age  of  consent  is  raised 
to  eighteen  for  males,  and  fourteen  for  females.  See  also  Bennett  v.  Smith,  21 
Barb.  439,  as  to  the  power  of  the  New  York  courts  to  annul  marriages  with  per- 
sons under  age. 

2  Co.  Litt.  79,  and  Harg.  n.  4-5;  1  East  P.  C.  468;  1  Bish.  Mar.  &  Div.  5th  ed. 
§  149.  But  it  is  not  certain  that  a  party  of  competent  age  may  disaffirm  equally 
with  the  party  incompetent.     People  v.  Slack,  15  Mich.  193. 

3  Co.  Liu.  33  a ;  2  Kent  Com.  78,  79;  1  Bish.  Mar.  &  Div.  5th  ed.  §§  143-153, 
and  cases  cited ;  1  Bl.  Com.  436  ;  1  Fras.  Dom.  Rel.  42 ;  Parton  i'.  Hervey,  1 
Gray,  119;  Fitzpatriok  v.  Fitzpatrick,  6  Nev.  63.  See  Shafher  r.  State,  20 
Ohio,  1 ;  contra,  Goodwin  v.  Thompson,  2  Iowa,  329,  as  to  the  invalidity  of  such 
marriages,  unless  confirmed  by  cohabitation  after  reaching  the  statutory  age. 

3  [33] 


*  33  HUSBAND   AND  WIFE. 

It  is  a  well  established  rule  in  civilized  countries  that  mar- 
riage between  parties,  one  of  whom  is  bound  by  an  existing 
marriage  tie,  is  not  only  void,  but  subjects  the  offenders  to 
criminal  prosecution.^  Polygamy,  or  bigamy  as  it  is  often 
termed,  —  since  the  common  law  of  England  could  scarcely 
conceive  of  such  conjunctions  carried  beyond  a  double  mar- 
riage, —  is  discarded  by  all  Christian  communities.  It  is 
tolerated,  though  not  sanctioned,  in  certain  territory  of  the 
United  States.  The  fundamental  doctrine  of  Christian  mar- 
riage is  that  no  length  of  separation  can  dissolve  the  union, 
so  long  as  both  parties  are  actually  living,  even  though  lapse 
of  time  should  raise  a  reasonable  supposition  of  death.  But 
to  render  the  second  marriage  void  at  law,  the  first  should 
have  been  valid  in  all  respects.^.    Some  of  the  harsher 

*  34    features  of  the  old  law  have  been  *  softened  in  our 

own  legislation  ;  and  statutes  are  not  uncommon  which 
extend  facilities  for  divorce,  and  in  any  event  protect  the 
offspring  of  a  new  marriage  contracted  erroneously  but  in 
good  faith  by  parties  who  had  reason  to  believe  a  former 
spouse  dead.^  So,  too,  polygamy  in  fact  is  relieved  of  its 
penal  consequences  as  concerns  parties  not  guilty  of  polygamy 
in  intention ;  but  a  certain  period  must  elapse  —  usually 
seven  years  —  before  death  can  be  presumed  from  continuous 
absence  alone.  Such  was  one  of  the  provisions  in  the  Eng- 
lish statute  passed  in  the  reign  of  James  I.,*  which  also 
exempted  from  punishment  for  bigamy  persons  during  the 
lifetime  of  the  former  spouse  re-married  after  a  divorce,  sen- 
tence of  nullity,  or  disaffirmance  on  reaching  age  of  consent. 
Similar   statutes   are    enacted   in   this  country.^     Polygamy, 

1  Cro.  Eliz.  858;  1  Salk.  121;  2  Kent  Com.  79,  and  notes;  1  Bish.  Mar.  & 
Div.  §§  2'J6-303,  and  authorities  cited  ;  Shelf.  Mar.  &  Div.  224. 

-'  Bruce  v.  Burke,  2  Add.  Ec.  471  ;  2  Eng.  Ec.  381;  Reg.  v.  Chadwick,  12 
Jur.  174;  Patterson  v.  Gaines,  6  How.  (U.  S.)  550. 

3  See  N.  Y.  Rev.  Stat.  vol.  2,  p.  139,  §§  6,  7. 

*  Stat.  1  Jac.  1,  c.  11,  1604.     See  Queen  v.  Lumley,  L.  R.  1  C.  C.  196. 

5  In  New  York,  the  period  of  absence  is  five  years  ;  in  Oiiio,  tliree  years  ;  in 
Massacliusetts,  seven  years,  but  with  a  special  relaxation  of  the  penalty.  Still 
further,  see  2  Kent  Com.  79,  and  notes.  Parties  are  not  free  to  marry  again,  but 
only  relieved  of  penal  consequences.  Miles  v.  Chilton,  1  Robertson,  684 ;  Wil- 
liamson V.  Parisian,  1  Johns.  Ch.  389  ;  and  other  authorities  cited  in  1  Bish.  Mar. 
&  Div.  §  299.     See  Strode  v.  Strode,  3  Bush,  227 ;  Teift  v.  Tefl't,  35  Ind.  44.    A 

[34] 


MARRIAGE.  *  3-t 

with  sucli  exceptions,  remains  an  indictable  offence.  One  of 
its  less  obvious  evils  —  though  not  the  least  important  when 
polj'gamy  is  regarded  as  a  legalized  institution  in  a  free 
country  —  is  that  the  patriarchal  principle  which  it  intro- 
duces is  thoroughly  hostile  to  free  institutions ;  this  fact  was 
pointed  out  many  years  ago  by  one  of  our  best  writers  on 
political  ethics.^ 

Under  this  same  head  may  be  considered  a  disqualification 
introduced  into  some  parts  of  this  country  by  legislative 
enactments  ;  namely,  the  impediment  which  follows  divorce.^ 
A  divorce  a  vinculo  should  on  general  principles  leave  both 
parties  free  to  marry  again.  But  such  is  not  always  the  case. 
Thus  in  Kentucky  the  person  injured  may  not  marry 
again  before  *  the  expiration  of  two  years  from  the  *  35 
decree  of  dissolution.^  And  in  several  States,  the  guilty 
party  is  prohibited  from  marrying  again  during  the  lifetime 
of  the  innocent  spouse  divorced  ;  a  provision  of  law  seemingly 
more  judicious  to  apply  in  terrorem  by  way  of  prevention  than 
as  a  suitable  method  of  punishment.*  In  Scotland  there  is  a 
peculiar  law  which  forbids  the  guilty  party  after  divorce  from 
marrying  the  partieeps  crimiiiis  ;  this  was  framed  evidently 
to  defeat  collusive  practices  between  persons  desiring  to  put 
away  an  outstanding  obstacle  to  their  own  union.^ 

Seventh.  All  marriages  procured  by  force  or  fraud,  or  in- 
volving palpable  error,  are  void  ;  for  here  the  element  of  mut- 
ual consent  is  wanting,  so  essential  to  every  contract.*"     The 

marriage  with  a  man  whose  wife  is  still  living  being  void,  the  woman  who  was 
misled  into  marrying  him  may  marry  anotlier,  altiiough  her  husband  by  such 
void  marriage  is  still  living.  Reeves  v.  Reeves,  54  111.  332.  For  circumstances 
under  wliich  tlie  woman  fraudulently  induced  to  enter  into  a  void  marriage  of 
this  sort  may  sue  the  man  in  damages,  see  Blossom  v.  Barrett,  37  N.  Y.  434. 

1  2  Lieber  Pol.  Ethics,  9,  cited  in  note  to  2  Kent  Com.  81.  See  Hyde  v. 
Woodmansee,  L.  R.  1  F.  &  D.  130. 

2  1  Bish.  Mar.  &  Div.  5th  ed.  §§  304-307. 

3  Cox  V.  Combs,  8  B.  Monr.  231. 

<  See  Parke  v.  Barron,  20  Geo.  702,  where  it  is  intimated  tliat  such  marriages 
would  not  be  void.     And  see  Kinnier  v.  Kinnier,  53  Barb.  454. 

&  1  Eras.  Dom.  Rel.  82. 

6  2  Kent  Com.  76,  77  ;  1  Bish.  Mar.  &  Div.  5th  ed.  §§  1G4-215;  Harford  v. 
Morris,  2  Hag.  Con.  423 ;  4  Eng.  Ec.  575 ;  Countess  of  Portsmouth  v.  Earl  of 
Portsmouth,   1   Hag.  Ec.  355;  3  Eng.  Ec.  154  ;  Scott  f.  SliuleUlt,  5  Paige,  43  , 

[35] 


♦  35  HUSBAND  AND  WIFE. 

law  treats  a  matrimonial  union  of  this  kind  as  absolutely  void 
ah  initio^  and  permits  its  validity  to  be  questioned  in  any 
court ;  at  the  option  however  of  the  injured  party,  who  may 
elect  to  abide  by  the  consequences  when  left  free  to  give  or 
withhold  assent.  Force  implies  a  physical  constraint  of  the 
will ;  fraud,  some  deception  practised,  whereby  an  unnatural 
state  of  the  will  is  brought  about.^  Cases  of  palpable  error, 
which  are  very  rare,  usually  contain  one  or  both  of  these 
ingredients.  What  amount  of  force  is  sufficient  to  invalidate 
a  marriage  is  a  question  of  circumstances.  Evidently  the 
same  test  could  not  apply  to  the  mature  and  the  immature, 
to  the  strong  and  the  weak,  to  man  and  to  woman.  The 
general  rule  is  that  such  amount  of  force  as  might  naturally 
serve  to  overcome  one's  free  volition  and  inspire  terror 

*  36    will  render  the  marriage  null.^     And  where  *  the  party 

employing  force  sustains  a  superior  relation  of  influence, 
which  he  chooses  to  abuse,  this  circumstance  carries  great 
weight.  Thus  in  Harford  v.  Morris^  where  one  of  the  guar- 
dians of  a  young  and  timid  school-girl,  having  great  influence 
and  authority  over  her,  took  her  to  a  foreign  country,  hurried 
her  from  place  to  place,  and  then  married  her  without  her 
free  consent,  the  marriage  was  set  aside.^  So  marriage  by 
compulsion  is  procured  when  one  under  illegal  arrest  is  forced 
to  marry  ;  and  so  probably,  though  the  arrest  was  legal,  if 
malicious  circumstances  are  manifest.^  But  if  a  man  under 
some  slight  duress  marries  a  woman  whom  he  had  seduced, 
in  order  to  avoid  criminal  prosecution,  the  law  will  favor  a 
presumption  of  honest  repentance  on  his  part  and  hold  him 
bound.^  As  to  fraud,  in  order  to  vitiate  a  marriage,  it  should 
go  to  the  very  essence  of  the  contract.     But  what  constitutes 

Dalrymple  v.  Dalrymple,  2  Hag.  Con.  64,  104  ;  4  Eng.  Ec.  485  ;  Keyes  v.  Keyes, 
2  Fost.  (N.  H.)  553. 

1  1  Eras.  Dom.  Rel.  234. 

2  Slielf.  Mar.  &  Div.  213 ;  1  Bish.  Mar.  &  Div.  5th  ed.  §  211. 

3  2  Hag.  Con.  423 ;  4  Eng.  Ec.  675. 

4  Reg.  V.  Orgill,  9  Car.  &  P.  80;  Soule  v.  Bonney,  37  Me.  128;  Collins  v. 
Collins,  2  Brews.  (Pa.)  515;  Barton  v.  Morris,  15  Ohio,  408;  Benton  v.  Benton, 
1  Day,  111.  See  1  Bish.  Mar.  &  Div.  5th  ed.  §  212;  Williams  v.  State,  44  Ala. 
24. 

*  Jackson  v.  Winne,  7  Wend.  47. 

[36] 


MARRIAGE.  *  36 

this  essence  ?  The  marriage  relation  is  not  to  be  distiirhed 
for  trifles,  nor  can  the  cumbrous  machinery  of  the  courts  be 
brought  to  bear  upon  impalpable  things.  The  law,  it  has 
been  well  observed,  makes  no  provision  for  the  relief  of  a 
bUnd  credulity,  however  it  may  have  been  produced. ^  Fraud- 
ulent misrepresentations  of  one  party,  as  to  birth,  social 
position,  fortune,  good  health,  and  temperament,  cannot 
therefore  vitiate  the  contract.  Caveat  emptor  is  the  harsh 
but  necessary  maxim  of  the  law.  Love,  however  indispensa- 
ble in  an  sesthetic  sense,  is  by  no  means  a  legal  essential  to 
mariiage  ;  simply  because  it  cannot  be  weighed  m  the  scales 
of  justice.  So  too  all  such  matters  are  peculiarly  within  the 
knowledge  of  the  parties  themselves,  and  they  are  put  upon 
reasonable  inquiry.  Not  even  does  the  concealment  of 
previous  unchaste  and  immoral  *  behavior  in  general  *  37 
vitiate  a  marriage ;  for  although  this  seems  to  strike 
into  the  essence  of  the  contract,  yet  public  policy  pronounces 
otherwise,  and  opens  marriage  as  the  gateway  to  repentance 
and  virtue.2  If  the  profligate  continue  a  profligate  after 
marriage  the  divorce  laws  afford  an  easy  escape  to  the  deluded 
victim.  Still  as  this  doctrine  seems  to  bear  hard  upon  inno- 
cent persons  marrying  in  good  faith  and  with  misplaced  con- 
fidence, it  is  applied  not  without  some  limitations :  thus 
where  a  woman  pregnant  by  another  man  at  the  time  of  the 
nuptials,  bears  a  child  soon  after  to  an  innocent  husband,  the 
marriage  may  be  avoided  by  him,  for  she  has  thereby  not  only 
inflicted  upon  him  the  grossest  possible  injury,  but  subjected 
them  both  to  scandal  and  ill-repute.^  As  to  error,  it  may  be 
said  as  in  fraud  that  the  error  should  reach  the  essentials ; 
thus  where  one  is  actually  substituted  for  another.  Chan- 
cellor Kent  justly  observes,  however,  that  it  would  be  diflicult 

1  Lord  Stowell,  in  Wakefield  v.  Maekay,  1  Phillim.  137  ;  2  Kent  Com.  77 ; 
1  Bish.  Mar.  &  Div.  5th  ed.  §§  166-168. 

2  1  Bish.  Mar.  &  Div.  §§  170,  179 ;  Rogers  Ec.  Law,  2d  ed.  644  ;  1  Eras. 
Dora.  Rel.  231 ;  Ayl.  Parer.  362,  363  ;  Swinb.  Spoiisals,  2d  ed.  152;  Best  v.  Best, 
1  Add.  Ec.  411 ;  2  Eng.  Ec.  158  ;  Leavitt  v.  Leavitt,  13  Mich.  452 ;  Wier  v.  Still, 
31  Iowa,  107* 

3  Reynolds  v.  Reynolds,  3  Allen,  605.  See  Foss  v.  Foss,  12  Allen,  26  ;  Cre- 
hore  V.  Crehore,  97  Mass.  330 ;  Baker  v.  Baker,  13  Cal.  87 ;  Montgomery  i-. 
Montgomery,  3  Barb.  Ch.  132. 

[37] 


*  37  HUSBAND  AND  WIFE. 

to  find  a  case  where  simple  error,  without  some  other  element, 
would  be  permitted  to  vacate  a  marriage.^ 

There  is  an  English  case  in  point  where  a  man  courted  and 
afterwards  married  a  young  lady,  believing  her  to  be  a  certain 
rich  widow  whom  he  had  known  only  by  reputation.  She 
and  her  friends  had  countenanced  the  deception.  It  was  held 
nevertheless  that  the  marriage  must  stand.^ 

In  most  of  the  reported  cases  of  fraud,  force,  and  error,  two 

or  more  of  these  elements  are  united;  and  frequently  another 

impediment  appears,  such  as  tender  years  on  the  part  of  the 

injured  party ;  or  with  regard  to  the  offender,  the  sup- 

*  38    pression  *  of  material  facts  relative  to  some  former  mar- 

riage, or  to  his  own  mental  or  physical  incapacity,  or 
some  other  cause  of  nullity  is  shown  by  the  evidence.  In  the 
reported  cases  where  the  complainant  was  successful,  some 
unprincipled  man  has  generally  sought  to  gain  undue  advan- 
tages from  the  person  and  fortunes  of  one  whose  feebler  will 
rendered  her  an  easy  prey ;  it  rarely  if  ever  appears  that  force 
or  fraud  led  to  a  reasonable  and  well-assorted  match.  Such 
unequal  alliances  need  find  favor  fi'om  no  tribunal.'^ 

All  marriages  of  this  sort  are  binding  without  further  cere- 
mou}-,  provided  the  injured  party  sees  fit  to  affirm  it  after  all 
constraint  is  removed  ;  but  no  such  freedom  of  choice  seems 
to  be  left  to  the  offending  party.  Hence,  this  sort  of  marriage 
seems  neither  void  nor  voidable  in  the  legal  acceptation  ;  but 
rather  inchoate  or  incomplete  until  ratified,  though  void,  if 
the  injured  choose  so  to  treat  it.  Where  consummation  never 
followed  the  nuptials,  the  courts  are  the  more  readily  disposed 
to  set  aside  the  match  ;  but  in  any  event  copulation,  with 
knowledge  of  the  fraud,  and  after  removal  of  all  constraint, 

1  2  Kent  Com.  77.  But  see  Lord  Campbell,  in  Reg.  v.  Millis,  10  CI.  &  F. 
634,  785 ;  1  Bish.  Mar.  &  Div.  5th  ed.  §  207  ;  Clowes  v.  Clowes,  3  Curt.  Ec. 
185,  191. 

-  Fielding's  Case,  cited  in  Burke's  Celebrated  Trials,  63,  78,  and  in  1  Bish. 
Mar.  &  Div.  5th  ed.  §  204. 

3  See  Heffer  v.  Heffer,  3  M.  &  S.  265 ;  Eex  v.  Burton-upon-Trent,  3  M.  &  S. 
537  ;  Swift  v.  Kelly,  3  Knapp,  257  ;  Nace  v.  Boyer,  6  Casey,  99 ;  Powell  v. 
Cobb,  3  Jones  Eq.  456.  If  a  person  is  unwittingly  entrapped  into  a  marriage 
ceremony,  not  meaning  that  it  shall  be  binding,  the  marriage  is  void.  Clark* y. 
Field,  18  Vt.  460.  A  mock  marriage  in  jest  is  no  marriage.  McClurg  v.  Terry, 
21  N.  J.  Eq.  225. 

[38] 


MARRIAGE.  *  38 

is  an  effectual  bar  to  relief.^  The  issue  is  between  the 
offender  and  the  injured  partjs  and  third  persons  have  no 
right  to  interfere,  although  it  be  alleged  that  there  was  intent 
to  defraud  them  in  their  own  property  interests.^  We  may 
add  that  where  such  marriages  are  effected  through  the 
fraudulent  conspiracy  of  third  persons,  the  rule  is  that  unless 
one  of  the  contracting  parties  is  cognizant  of  the  fraud,  the 
marriage  is  perfect ;  but  if  cognizant, 'it  is  to  be  deemed  the 
fraud  of  such  party  .^ 

*  Eighth.  We  are  now  brought  to  the  important  sub-    *  39 
ject  of  the  formal  marriage  celebration.     Here  there  is 

a  wide  difference  noticeable  between  general  principles  and 
estal)lished  practice.  We  are  to  consider  this  topic,  then,  in 
two  separate  aspects :  first,  as  to  marriage  observance  in  the 
absence  of  civil  requirements  ;  second,  as  to  marriage  ob- 
servance under  the  statutes  now  in  force  in  England  and 
America. 

It  is  to  be  premised,  however,  that  some  form  of  marriage 
promise,  some  ceremony  however  slight,  has  always  been 
deemed  essential  to  its  validity.  The  common  language  of 
the  books  is  that,  in  the  absence  of  civil  regulations  to  the 
contrary,  nothing  but  mutual  consent  is  required.  And  the 
old  maxim  of  the  Roman  law  is  quoted  to  support  this  view  : 
Nuptias  non  conciibitus,  sed  consensus  facitA  But  is  there  not 
an  ambiguity  in  the  use  of  such  language  ?  For  it  is  material 
to  ask  whether  consensus  or  consent  is  used  in  the  sense  of 
simple  volition  or  an  expression  of  volition.  We  maintain 
that  the  latter  is  the  correct  legal  view ;  and  that  it  should 
be  said  that  the  law  requu-es  in  such  cases  a  simple^expression 
of  mutual  consent,  and  no  more.  For  the  very  definition  of 
marriage  implies  that  there  should  be  not  only  the  consenting 
mind,  but  an  expression  of  the  consenting  mind,  by  words  or 
signs,  which  expression  in  proper  form  constitutes  in  fact  the 

1  1  Bish.  Mar.  &  Div.  5th  ed.  §§  214,  215;  1  Burge  Col.  &  For.  Laws,  137; 
1  Fras.  Dom.  Rel.  229;  Scott  v.  Shufeklt,  5  Paige,  43;  Leavitt  i'.  Leavitt,  13 
Mich.  452 ;  Hampstead  v.  Plaistow,  49  N.  II.  84. 

2  McKinney  v.  Clarke,  2  Swan,  321. 

3  Sullivan  v.  Sullivan,  2  Hag.  Con.  2.38,  246  ;  Rex  v.  Minshull,  1  Xev.  &  M. 
277  ;  1  Bish.  Mar.  &  Div.  §  173  et  seq. 

*  See  2  Kent  Com.  86,  87  ;  Co.  Litt.  33  a  ;  1  Bish.  Mar.  &  Div.  §§  218-267. 

[39] 


*  39  HUSBAND   AND  WIFE. 

marriage  agreement.  It  is  in  this  sense  that  we  shall  apply 
the  terms  formal  and  informal  to  marriage  in  the  following 
sections. 

To  constitute  a  marriage,  then,  where  there  are  no  civil 
requirements,  —  or,  in  other  words,  to  constitute  an  informal 
marriage,  —  words  clearly  expressing  mutual  consent  are  suffi- 
cient, without  other  solemnities.  Two  forms  of  consent  are 
mentioned  in  the  books:  the  one,  consent  per  verba  deprcesenti^ 
with  or  without  consummation ;  the  other,  consent  per  verba 

de  futuro,  followed  by  consummation. ^  Some  writers 
*40    have  added  *a  third  form  of  consent,  —  by  habit  and 

repute  ;  but  this  is,  very  clearly,  nothing  more  than 
evidence  of  consummated  marriage  amounting  to  a  conclusive 
presumption.  So,  too,  there  is  reason  to  suppose  that  the 
marriage  j^^r  verba  de  futuro  is  of  the  same  sort ;  marriage  per 
verba  de  j^rcesenti  constituting  the  only  real  marriage  promise, 
while  consummation  following  de  futuro  words  of  prom- 
ise, raises  a  legal  presumption,  perhaps  conclusive,  that  words 
de  p>roesenti  afterwards  passed  between  the  parties.  The 
copula  is  no  part  of  the  marriage ;  it  only  serves  to  some 
extent  as  evidence  of  marriage.^  Consensus,  non  conouhitus, 
is  the  maxim  of  the  civil,  ecclesiastical,  and  common  law 
alike. ^ 

Informal  celebration  constitutes  marriage  as  known  to  nat- 
ural and  23ublic  law.  The  English  canon  law  as  it  stood  pre- 
vious to  the  Council  of  Trent,  the  law  of  Scotland,  the  law 
of  some  of  the  United  States,  and  perhaps  the  common  law  of 
England,  all  dispense  with  the  ceremonial  observances  of  for- 
mal marri^e.  But,  as  we  shall  see,  the  marriage  acts  now  in 
force  in  England  and  most  of  the  United  States  render  certain 
solemnities,  religious  or  secular,  indispensable.  Most  of  the 
decisions  relating  to  informal  marriages  are  therefore  to  be 
found  in  the  Scotch  reports,  where  the  general  doctrine  has 

1  Swinb.  Spousals,  2d  eil.  8  ;  2  Burn  Ec.  Law,  Pbillim.  ed.  455  e  ;  Lord  Cot- 
tenham,  in  Stewart  v.  Menzies,  2  Rob.  Ap.  Cas.  547  ;  1  Bish.  Mar.  &  Div.  5th  ed. 
§  227. 

2  1  Bish.  Mar.  &  Div.  5th  ed.  §  228;  Jackson  v.  Winne,  7  Wend.  47  ;  Du- 
maresly  v.  Fisiily,  3  A.  K.  Marsh.  368,  872. 

3  Dalrymple  v.  Dalrymple,  2  Hag.  Con.  54;  4  Eng.  Ec.  485,  489;  Shelf.  Mar. 
&  Div.  5-7. 

[40] 


MARRIAGE.  *  40 

been  pretty  fully  discussed.  And  the  great,  almost  insuper- 
able, difficulty  which  presents  itself  at  the  outset  in  such  cases 
is  thus  clearly  indicated  by  Lord  Stowell,  in  Linclo  v.  Belhario  : 
"  A  marriage  is  not  every  carnal  commerce  ;  nor  would  it  be 
so  even  in  the  law  of  nature.  A  mere  carnal  commerce,  with- 
out the  intention  of  cohabitation  and  bringing  up  of  children, 
would  not  constitute  marriage  under  any  supposition.  But 
when  two  persons  agree  to  have  that  commerce  for  the  pro- 
creation and  bringing  up  of  children,  and  for  such  last- 
ing *  cohabitation,  —  that,  in  a  state  of  nature,  would  be  *  41 
a  marriage,  and,  in  the  absence  of  all  civil  and  religious 
institutions,  might  safely  be  presumed  to  be,  as  it  is  properly 
called,  a  marriage  in  the  sight  of  God.'''  ^  Did  parties  coming 
thus  together  mean  fornication  or  did  they  mean  marriage  ? 

Here  it  is  seen  that  there  should  not  only  be  words  of  prom- 
ise, but  that  they  should  be  uttered  with  matrimonial  intent. 
To  ascertain  the  purpose  of  the  parties  in  each  case,  the  courts 
will  look  at  all  the  circumstances  ;  and  even  admit  parol  evi- 
dence to  contradict  the  terms  of  a  written  contract ;  in  this 
respect  modifying  the  ordinary  rules  of  evidence.  For  writings 
of  matrimonial  acknowledgment  may  have  been  interchanged 
as  a  blind  or  cover  for  some  scheme  well  understood  between 
the  parties.2  Or  again  by  way  of  jest.^  But  in  cases  of  doubt 
the  rule  is  to  sustain  the  marriage  as  lawful  and  binding.  If 
there  has  been  continued  intercourse  between  the  parties,  this 
presumption  becomes  of  course  still  stronger.  And  if  promises 
were  exchanged,  while  one  acted  in  good  faith  and  in  earnest, 
the  other  is  not  permitted  to  plead  a  mental  reservation.* 

Words  of  present  promise,  in  order  to  constitute  a  marriage, 
must  contemplate  a  present,  not  a  future,  assumption  of  the 
status.  And  herein  lies  a  difficulty  :  that  of  discriminating 
between  actual  marriage  and  what  we  now  commonly  term 

1  1  Hag.  Con.  216 ;  4  Eng.  Ec.  367,  374.  See  1  Bish.  Mar.  &  Div.  5th  ed. 
§§  216-267,  and  cases  cited  ;  2  Kent  Com.  86  and  n. ;  1  Eras.  Dom.  Rel.  140, 184, 
187,  212. 

2  Dalrymple  v.  Dalrymple,  2  Hag.  Con.  54,  105 ;  4  Eng.  Ec.  485,  508,  509, 
cited  in  1  Bish.  Mar.  &  Div.  5th  ed.  §§  289-241. 

3  lb. 

*  lb.  And  see  1  Eras.  Dom.  Rel.  213  ;  Lockyer  v.  Sinclair,  8  Scotch  Sess. 
Cas.  N.  s.  582. 

[41] 


*  41  HUSBAND  AND  WIFE. 

an  engagement.  If  the  agreement  be  by  words  of  present 
•promise,  —  as  if  the  parties  should  say,  "  We  agree  to  be 
henceforth  man  and  wife,"  —  the  marriage  is  perfect.  The 
form  of  expression  is  not  materiah^  And  Swinburne  says  that 
though  the  words  should  not  of  themselves  conclude  matri- 
mony, yet  the  marriage  would  be  good  if  it  appeared 

*  42    that  such  was  the  intent.^     *  The  proposal  of  one  must 

be  actually  accepted  by  the  other ;  j^et  such  acceptance 
may  be  indicated  by  acts,  such  as  a  nod  or  courtesy.  Written 
promises  are  of  course  unnecessary ;  though  the  reported 
cases  show  frequently  letters  or  other  writings  interchanged, 
from  which  the  intent  was  gathered.  And  in  the  celebrated 
Scotch  case  of  Balrymple  v.  Dalrymple^  a  marriage  promise 
was  established  from  the  successive  united  acknowledgments 
of  the  parties  as  man  and  wife,  the  writings  having  been  pre- 
served by  the  lady  and  produced  by  her  at  the  trial.  In  this 
case  the  principle  was  sustained,  that  words  importing  secrecy 
or  alluding  to  some  future  act  or  public  acknowledgment, 
when  superadded  to  words  of  present  promise,  do  not  invali- 
date the  agreement.^  More  uncertainty  arises  in  matrimonial 
contracts  where  a  condition  inconsistent  with  marriage  is 
superadded  ;  as  if  parties  should  agree  to  live  together  as  man 
and  wife  for  ten  years  ;  but  bona  fide  intent  may  be  fairly 
presumed  where  there  are  no  special  circumstances  to  throw 
light  upon  the  conduct  of  the  parties.'^ 

Marriage  by  words  of  future  promise  is  consummated  when 
two  persons  agree  to  marry  at  some  future  period  and  after- 

1  1  Bish.  Mar.  &  Div.  5th  ed.  §§  227,  229 ;  1  Fras.  Dom.  Eel.  145-149. 

2  Swinb.  Spousals,  2d  ed.  87. 

3  Dalrymple  v.  Dalrymple,  2  Hag.  Con.  54 ;  4  Entr-  Ec.  485 ;  Mclnnes-  v. 
More,  Ferg.  Consist.  Law  Rep.  33;  Hoggan  v.  Cragie,  Maclean  &  Rob.  942. 

*  See  1  Bish.  Mar.  &  Div.  5th  ed.  §§  245-250 ;  Ciirrie  v.  Turnbull,  Hume,  373 ; 
1  Fras.  Dom.  Rel.  154.  See  Hamilton  v.  Hamilton,  9  CI.  &  F.  327  ;  Hantz  v. 
Sealy,  6  Binn.  405 ;  Robertson  v.  Cowdry,  2  West.  Law  Jour.  191;  and  in  Bish. 
supra.  Bissell  v.  Bissell,  55  Barb.  325,  shows  an  interesting  state  of  facts,  upon 
which  it  was  decided  that  the  marriage  was  valid.  See  Commonwealth  v. 
Stump,  53  Penn.  St.  132  ;  Sapp  v.  Newsom,  27  Tex.  537.  The  presumption  of 
law  is  in  favor  of  regarding  cohabitation  and  like  circumstances  as  an  indica- 
tion of  marriage  ;  but  of  course  the  presumption  may  be  overthrown  by  counter 
evidence.  Myatt  v.  Myatt,  44  111.  473  ;  Blackburn  v.  Crawfords,  3  Wall.  175 ; 
Goldbeck  v.  Goldbeck,  3  C  E.  Green,  42. 

[42] 


MARRIAGE.  ♦  42 

wards  actually  do  cohabit.  But  in  this  class  of  eases  it  is 
requisite  that  the  promise  de  futuro  should  be  absolute  and 
mutual.  Mere  courtship  does  not  suffice,  though  followed  by- 
carnal  intercourse.^  Nor  in  general  do  words  of  promise  with 
immoral  conditions  annexed.  It  is  not  clear  whether  cohabi- 
tation after  verba  de  futuro  raises  a  conclusive  presumption  of 
marriage  at  law  or  not :  the  more  reasonable  doctrine, 
however,  is  that  it  *  does  not,  and  that  the  intent  of  the  *  43 
parties  may  be  shown  as  in  other  cases.  But  innocence 
will  be  inferred,  if  possible,  rather  than  guilt.^  So  it  has 
been  said  that  where  a  legal  impediment  exists  to  a  marriage 
between  persons  living  in  licentious  intercourse,  as  the  im- 
pediment sinks  the  status  rises.^  In  New  York,  this  doctrine 
of  marriage  by  words  de  futuro  is  utterly  repudiated,  and  it  is 
maintained  that  informal  marriages  were  unknown  to  the 
English  common  law.*  This  last  has  been  long  a  mooted 
point  in  the  courts,  and  will  ever  remain  so ;  but  whatever 
may  have  been  the  historical  fact,  certain  it  is  that  the  neces- 
sity of  a  more  formal  observance  of  marriage  has  been  almost 
universally  recognized  ;  and  the  very  words,  "  marriage  in  the 
sight  of  God,"  so  familiar  to  the  readers  of  the  Scotch  matri- 
monial law,  not  only  import  the  peculiar  embarrassments 
which  attend  the  justification  of  such  loosely  contracted  alli- 
ances before  the  world,  but  attest  the  solemn  character  of 
this  institution. 

All  the  learning  of  informal  marriages  was  swept  out  of 
the    English    courts  when  formal  religious  celebration  was 

.  1  Reid  V.  Laing,  1  Shaw  Ap.  Cas.  440  ;  Stewart  v.  Menzies,  2  Rob.  Ap.  Cas. 
547,  591  ;  1  Fras.  Dom.  Eel.  188 ;  Reg.  v.  Millis,  10  CI.  &  F.  534,  780;  Duma- 
resly  v.  Fishly,  3  A.  K.  Marsh.  368 ;  1  Bish.  INIar.  &  Div.  5th  ed.  §§  253-2G5,  and 
other  cases  cited. 

2  See  Cheney  v.  Arnold,  15  N.  Y.  345 ;  Duncan  v.  Duncan,  10  Ohio  St.  181  ; 
and  comments  of  Mr.  Bishop,  supra,  §§  255-2o8  ;  Reg.  v.  Millis,  10  CI.  &  F.  534  ; 
Swinb.  Spousals,  2d  ed.  225,  226 ;  Robertson  v.  State,  42  Ala.  509. 

3  1  Bish.  Mar.  &  Div.  5th  ed.  §  248.  See  Breadalbane  Case,  L.  R.  1  II.  L. 
(Scotch)  182. 

*  Cheney  v.  Arnold,  15  N.  Y.  345.  But  see  Bissell  v.  Bissell,  55  Barb.  325. 
Maryland  repudiates  the  doctrine  of  informal  marriages.  Denison  v.  Dcnison, 
35  Md.  361.  And  see  Holmes  v.  Holmes,  1  Abb.  (U.  S)  525;  Estill  v.  Rogers,  1 
Bush,  62.  The  opinion  of  Lord  Stowell  in  the  case  of  Dalrymple  v.  Dalrymple, 
to  which  we  have  alluded,  is  an  admirable  exposition  of  the  law  of  informal 
marriages.     It  is  a  masterpiece  of  judicial  eloquence  and  careful  research. 

[43] 


*  43  HUSBAND  AND  WIFE. 

prescribed  by  positive  statute.  Ceremonials  had  long  been 
required  by  those  canons  upon  which  the  ecclesiastical  law 
was  based.  Lord  Hardwicke's  Act,  passed  in  the  reign  of 
George  11.,^  is  the  most  famous  of  these  statutes.  This  act 
required  all  marriages  to  be  solemnized  in  due  form  in  a  parish 
church  or  public  chapel,  with  previous  publication  of  the 
banns ;  and  marriages  not  so  solemnized  were  pronounced  void, 
unless  dispensation  should  be  granted  by  special  license. 

*  44    Some  harsh  *  provisions  of  this  act  were  relaxed  in  the 

reign  of  George  IV.,  but  soon  re-enacted.^  More  recent 
legislation  permits  of  a  civil  ceremonial  before  a  register,  to 
satisfy  such  as  may  have  conscientious  scruples  against  mar- 
riage in  church.^  Such,  too,  is  the  general  tenor  of  legislation 
in  this  country ;  the  law  justly  regarding  civil  observances 
and  public  registration  sufficient  for  its  own  purposes,  while 
human  nature  clings  to  the  religious  ceremonial.^ 

Either  celebration  before  a  clergyman  or  in  presence  of 
such  civil  officers  as  the  statute  may  designate  is  therefore  at 
the  option  of  parties  choosing  at  the  present  day  to  marry. 
This  is  the  law  of  England  and  America.  And  the  only 
controversies  ever  likely  to  occur  in  our  courts  would  be 
where  the  language  of  the  statutes  in  some  particular  State 
left  it  doubtful  whether  marriages  celebrated  informally  were 
to  be  considered  absolutely  null.  It  is  to  be  borne  in  mind 
that  Lord  Hardwicke's  Act  is  of  too  recent  a  date  to  be  con- 
sidered as  part  of  our  common  law.  Was,  then,  marriage  in 
facie  ecclesice  essential  in  England  before  the  passage  of  this 
act  ?  It  is  admitted  that  the  religious  marriage  celebration 
was  customary  previous  to  the  Reformation.  It  is  further 
allowed  that  the  church,  centuries  ago,  created  an  impedi- 

1  26  Geo.  2,  c.  33  (1753). 

'i  8  Geo.  4 ;  4  Geo.  4,  c.  76. 

3  See  6  &  7  WiU.  4,  c.  85  &  c.  88  ;  7  Will.  4,  and  1  Vict.  c.  22,  and  3  &  4 
Vict.  c.  92. 

<  See  2  Kent  Com.  88-90  ;  1  Bish.  Mar.  &  Div.  5th  ed.  §  279.  The  tendency 
of  the  courts,  in  construing  marriage  statutes,  appears  to  be  to  uphold  the  mar- 
riage, if  possible,  notwithstanding  the  non-compliance  of  parties  with  such 
requirements  as  those  of  license  or  registry.  See  Sichel  v.  Lambert,  15  C.  B. 
N.  s.  781 ;  Askew  v.  Dupree,  .30  Geo.  173  ;  Blackburn  v.  Crawfords,  3  Wall.  175; 
Campbell  v.  Gullatt,  43  Ala.  57. 

[44] 


MARRIAGE.  *  44 

ment,  now  obsolete,  called  "  precontract,"  the  effect  of  which 
was  that  parties  engaged  to  be  married  were  bound  by  an 
indissoluble  tie,  so  that  either  one  could  compel  the  other  to 
submit  at  any  time  to  the  ceremonial  marriage.  But  whether 
precontract  rendered  children  legitimate,  and  carried  dower, 
curtesy,  and  the  other  incidents  of  a  valid  marriage,  is  not  clear. 
In  1844,  the  question  whether  at  the  common  law  a  marriage 
without  religious  ceremony  was  valid  Avent  to  the  English 
House  of  Lords,  and  resulted  in  an  equal  division.^ 
And,  curiously  enough,  such  was  the  fate  of  a  *  similar  *  45 
case  in  this  country  before  the  highest  tribunal  in  the 
land.2  So  that  we  may  fairly  consider  the  law  on  this  point 
as  for  ever  unsettled.^ 

Among  most  nations  and  in  all  ages  has  the  celebration  of 
marriage  been  attended  with  peculiar  forms  and  ceremonies, 
which  have  partaken  more  or  less  of  the  rehgious  character. 
Even  the  most  barbarous  tribes  so  treat  it  where  they  hold  to 
the  institution  at  all.  The  Greeks  offered  up  a  solemn  sacri- 
fice, and  the  bride  was  led  in  great  pomp  to  her  new  home. 
In  Rome,  similar  customs  prevailed  down  to  the  time  of 
Tiberius.  Marriage,  it  is  true,  degenerated  afterwards  into  a 
mere  civil  contract  of  the  loosest  description ;  parties  being 
permitted  to  cohaljit  and  separate  with  almost  equal  freedom.* 
The  early  Christians,  there  is  reason  to  suppose,  treated  mar- 
riage as  a  civil  contract ;  yielding  perhaps  to  the  prevailing 
Roman  law.  Yet  the  teachings  of  the  New  Testament  and 
church  discipline  gave  peculiar  solemnity  to  the  relation. 
And  religious  observances  must  have  prevailed  at  an  early 


1  Reg.  V.  Millis,  10  CI.  &  F.  534. 

2  Jewell  V.  Jewell,  1  How.  (U.  S.)  219. 

••  See  full  discu.ssion  of  this  question  with  authorities  in  note  to  2  Kent  Com. 
87 ;  also  in  1  Bish.  Mar.  &  Div.  §§  269-282.  The  American  doctrine  is,  that  the 
intervention  of  one  in  holy  orders  was  not  essential  at  common  law.  This  is  the 
view  of  Chancellor  Kent,  Judge  Reeve,  and  Professor  Greenleaf,  as  expressed 
in  their  respective  text-books  ;  also  the  general  current  of  American  decisions. 
Mr.  Bishop  confirms  these  conclusions  while  suggesting  new  reasons.  Such  a 
rule  however  is  not  in  conflict  with  the  statement  of  the  text.  See  1  Bish.  Mar. 
&  Div.  5th  ed.  §§  279-282,  and  decisions  collated  ;  2  Kent  Com.  87 ;  Reeve 
Dom.  Rel.  195  d  seq. ;  2  Greenl.  Ev.  §  460. 

*  Smith's  Diet.  Antiq.  "  Marriage." 

[45] 


*  45  HUSBAND  AND  WIFE. 

date ;  for  in  process  of  time  marriage  became  a  sacrament. 
In  England,  centuries  later,  it  needed  only  Lord  Hardwicke's 
Act  to  apply  statute  law  to  a  universal  practice;  and  al- 
though, in  the  time  of  Cromwell,  justices  of  the  peace  were 
permitted  to  perform  the  ceremony,  popular  usage  by  no 
means  sanctioned  the  change.  Informal  marriages  are  uncom- 
mon even  in  Scotland  where  the  civil  law  prevails.  In  our 
own  country,  it  is  not  surprising  that  local  jurisprudence 

*  46    should  have  exhibited  some  signs  of  reaction  *  against 

ancient  canon  and  kingly  ordhiance.  Yet  even  with 
us,  the  almost  universal  custom  repudiates  informal  and 
civil  observances  ;  and,  secured  in  the  privilege  of  choosing 
prosaic  and  business-like  method  of  procedure.  Christian 
America  yields  its  testimony  in  favor  of  marriage  in  facie 
ecclcsice.^ 

The  consent  of  parents  or  guardians  was  not  necessary  to 
perfect  a  marriage  at  the  common  law.  But  Lord  Hard- 
wicke's Act  made  the  marriage  of  minors  void  without  such 
consent  first  obtained.^  This  proved  intolerable.  A  bona  fide 
and  apparently  regular  marriage  was  in  one  instance  set  aside, 
after  important  rights  had  intervened,  for  no  other  cause  than 
that  an  absent  father,  "supposed  to  be  dead,  but  turning  up 
unexpectedly,  had  failed  to  bestow  his  permission,  and  the 
mother  had  acted  in  his  stead.^  Gretna  Green  marriages,  on 
Scotch  soil,  became  the  usual  recourse  for  children  with 
unwilling  protectors.  The  law  was  afterwards  modified  so 
that  without  the  requisite  consent,  marriages,  although  for- 

1  See  2  Kent  Com.  89,  and  authorities  cited. 

We  do  not  mean  to  imply  that  marriage  is  a  sacrament,  or  that  religious  cere- 
monies are  essential  to  its  due  observance.  We  are  speaking  only  of  tlie  univer- 
sal testimony  as  to  the  fitness  of  peculiar  and  in  general  religious  observances. 
Judge  Reeve,  exhibiting  his  contempt  for  "  Popish  "  practices,  says,  "  Tliere  is 
nothing  in  tlie  nature  of  a  marriage  contract  that  is  more  sacred  than  that  of 
other  contracts  that  requires  the  interposition  of  a  person  in  holy  orders,  or  tliat 
it  should  be  solemnized  in  church."  Reeve  Dom.  Rel.  196.  At  the  time  he 
wrote,  was  not  the  practice  prevailing  in  New  England  contrary  to  his  theory, 
as  it  was  before  and  as  it  remains  still  ?  And  who  has  ever  proposed  in  modern 
times  to  perform  a  business  contract  in  church  1 

2  26  Geo.  2,  c.  33.  See  2  Kent  Com.  85;  Rex  v.  Hodnett,  1  T.  R.  96  ;  1 
Bish.  Mar.  &  Div.  5th  ed.  §§  293-295,  and  cases  cited. 

3  Hayes  v.  Watts,  2  Phillim.  43. 

[46] 


MARRIAGE.  *  46 

bidden,  might  remain  valid.^  And  these  features  are  found 
to  characterize  the  marriage  acts  in  the  different  States 
of  this  country.2  *  Clandestine  marriages  are  doubtless  *  47 
to  be  discouraged,  and  the  law  will  willingly  inflict  pen- 
alties upon  clergymen,  magistrates,  and  all  others  who  aid  the 
parties  in  their  unwise  conduct ;  but  experience  shows  that 
legislation  cannot  safely  interpose  much  farther. 

Defective  marriages  have  in  some  instances  been  legalized 
by  statute  ;  as  where  parties  within  the  prohibited  degrees  of 
consanguinity  or  affinity  have  united.  So  with  marriages 
before  a  person  professing  to  be  a  clergyman  or  justice  of  the 
peace,  but  without  actual  authority.  On  principle,  there 
seems  no  reason  to  doubt  that  any  government,  through  its 
legislative  branch,  may  unite  a  wiUing  pair  in  matrimony,  as 
well  as  pass  general  laws  for  that  purpose.^  But  though 
legislative  divorces  are  not  unfrequent,  a  legislative  marriage 
is  something  unknown,  not  to  say  uncalled  for. 

A  few  words  may  be  added  concerning  the  confl.ict  of  laws 
relating  to  marriage.  In  England,  such  cases  do  not  often 
come  before  the  courts ;  but  with  us  they  are  very  common, 
the  more  so  as  each  State  adopts  its  own  system  concerning 
marriage  and  divorce.  Marriage  is  favored  beyond  ordinary 
contracts  in  all  nations.  It  is  a  well-recognized  rule  that  a 
marriage  lawful  where  celebrated  is  lawful  everywhere  ;  and 
that  a  marriage  unlawful  where  celebrated  is  unlawful  every- 
where.'*    This  rule,  public  policy,  common  moraUty,  and  the 

1  Rex  V.  Birmingham,  8  B.  &  C.  29  ;  Shelf.  Mar.  &  Div.  309-322  ;  Stat.  4  Geo. 
4,  c.  76. 

2  1  Bish.  Mar.  &  Div.  §§  341-347,  and  cases  cited  ;  Smyth  v.  State,  13  Ark. 
696;  Wyckolf  v.  Boggs,  2  Halst.  138;  BolUn  v.  Shiner,  2  Jones  (Pa.),  205; 
and  see  AVood  y.  Adams,  36  N.  11.  32;  Kent  v.  State,  8  Blackf.  1G3 ;  Fitz- 
patricku.  Fitzpatrick,  (J  Nev.  63;  Adams  v.  Outright,  63  111.  361;  State  v.  Dole, 
20  La.  Ann.  378.  Tiie  language  of  some  statutes  leaves  the  point  in  doubt  as 
to  whether  marriages  without  the  consent  of  parents  renders  the  marriage  void 
or  only  subjects  offending  parties  to  a  penalty. 

ji  Brunswick  v.  Litchfield,  2  Greenl.  28  ;  Moore  v.  Whitaker,  2  Harring.  60 ; 
Goshen  v.  Richmond,  4  Allen,  458;  1  Bish.  Mar.  &  Div.  5th  ed.  §§  657-059.  As 
to  the  effect  of  a  Texas  statute,  which  rela.xed  old  requirements  in  legalizing  an 
r regular  marriage,  see  Rice  t'.  Rice,  31  Tex.  174. 

*  Story  Contl.  Laws,  §§  79-81  ;  2  Kent  Com.  91 ;  Scrimshirc  v.  Scrimshire, 

[47  1 


*  47  HUSBAND  AND  WIFE. 

comity  of  nations  demand,  shall  be  enforced.  Even  when 
parties  leave  their  own  State  or  country,  for  the  express  pur- 
pose of  evading  the  legal  requirements,  marry  abroad,  and 
then  return,  the  marriage  is  to  be  sustained.  This  doctrine 
was  very  liberally  applied  in  England,  when  the  famous  Gretna 
Green  method  of  union  was  pronounced  indissoluble.^ 

*  48    So  in  this  country,  *  where  persons  disqualified  by  the 

laws  of  their  own  State,  cross  over  into  another.^  In 
all  such  cases,  the  principle  of  ordinary  contracts  is  disre- 
garded, and  the  lex  loci  contractus  is  permitted  to  prevail  over 
the  lex  domicilii.  But  this  doctrine,  although  favored  by  most 
writers  on  public  law,  has  not  received  their  unanimous  sup- 
port. Huberus,  a  continental  jurist,  maintained  —  contrary 
to  the  view  afterwards  expressed  in  Compton  v.  Bearcroft,  by 
the  English  courts  —  that  where  parties  go  to  a  foreign 
country,  in  order  to  evade  their  own  laws  which  require  the 
assent  of  parent  or  guardian,  their  marriage  should  be  deemed 
invalid ;  for,  he  observes,  such  acts  tend  ad  eversionem  juris., 
and  should  not  be  encouraged.^  This  opinion  finds  favor  in 
France  and  Holland.  And  there  is  a  statute  in  Massachusetts 
to  the  same  purport.^  But  Compto7i  v.  Bearcroft  is  good  law 
in  England  and  most  parts  of  the  United  States.^ 

There  are  exceptions  to  the  rule  of  comity.     Among  them 

2  Hag.  Con.  395 ;  Harford  v.  Morris,  2  Hag.  Con.  423 ;  Lord  Tenterden,  in 
Lacon  v.  Higgins,  3  Starkie's  N.  P.  Cases,  178 ;  Simonin  i-.  Mallac,  2  Swab.  & 
T.  67. 

1  Compton  V.  Bearcroft,  Bui.  N.  P.  114  ;  2  Hag.  Con.  443.  "Where  parties 
married  in  Scotland  and  went  through  a  second  marriage  ceremony  in  Bel- 
gium, a  Belgian  divorce  whicli  purported  to  affect  the  Belgian  marriage  alone 
was  held  to  leave  the  Scotch  marriage  subsisting.  Birt  v.  Boutinez,  L.  K.  1  P. 
&  D.  437. 

2  Stevenson  v.  Gray,  17  B.  Monr.  193  ;  1  Bish.  Mar.  &  Div.  5th  ed.  §  355,  and 
American  cases  cited. 

3  De  Conflictu  Legura,  §  8.  See  other  authorities  cited  to  the  same  conclu- 
sion in  Story  Confl.  Laws,  §  123.  Chancellor  Kent  intimates  his  disapproval  of 
the  doctrine  of  Compton  v.  Bearcroft.  Note  to  2  Kent  Com.  91.  Burge,  in  1 
Col.  «Sb  For.  Laws,  194,  attempts  to  reconcile  the  views  of  Huberus  with  the 
English  rule. 

*  See  Commonwealth  v.  Hunt,  4  Cush.  49. 

5  Swift  V.  Kelly,  3  Knapp,  257 ;  Morgan  v.  McGhee,  5  Humph.  13  ;  Wall  v. 
Williamson,  8  Ala.  48;  Patterson  v.  Gaines,  6  How.  (U.  S.)  5.50;  Phillips  v. 
Gregg,  10  Watts,  158 ;  Fomstill  v.  Murray,  1  Bland,  479 ;  1  Bish.  Mar.  &  Div. 
6th  ed.  §  356. 

[48] 


MARRIAGE.  *  48 

are  to  be  classed  immoral  marriages,  —  or  such  as  may  be 
considered  prohibited  by  the  law  of  God.  No  Christian  nation 
would  tolerate  polygamy  within  its  borders  on  the  plea  that 
the  marriage  took  place  in  some  Asiatic  country.  Nor  would 
incest  be  permitted.^  Nor,  we  apprehend,  would  the  mar- 
riages of  such  as  are  mentally  and  physically  incapable.  In 
Conway  v.  Beazley,  the  EngHsh  courts  refused  to  recognize  a 
Scotch  divorce,  and  set  aside  a  second  marriage  ;  but  the 
facts  showed  *  a  clear  case  of  bigamy .2  Some  difficulties  *  49 
must  doubtless  arise  under  the  conflict  of  American  local 
statutes  relative  to  the  impediments  which  follow  a  complete 
divorce.'^  The  reasoning  of  Lord  Chancellor  Campbell  and 
other  peers  in  the  recent  English  case  of  Brook  v.  BrooTc^ 
which  went  on  appeal  to  the  House  of  Lords,  would  seem  to 
carry  the  exception  to  the  rule  of  comity  so  far  as  to  include 
not  only  immoral  marriages  but  marriages  in  violation  of  a 
law  of  domicile  which  absolutely  forbids  such  unions  every- 
where.'* The  point  actually  sustained  however  in  this  case 
was  the  invahdity  of  a  marriage  by  affinity  in  a  foreign  coun- 
try, where  such  marriages  are  lawful ;  but  which  have  always 
been  regarded  as  within  the  prohibition  of  God's  law  in  Eng- 
land. The  doctrine  claimed,  therefore,  seems  in  reality  that 
each  nation  shall  define  God's  law  for  itself.  The  lex  loci 
contractus^  we  may  remark  in  passing,  does  not  seem  of  neces- 
sity to  determine  such  legal  consequences  of  a  foreign  marriage 
as  the  legitimation  of  antenuptial  offspring.^ 

A  marriage  invalid  where  celebrated  is  as  a  rule  invalid 
everywhere.     But  this  principle  being  unfavorable  to  mar- 

1  Hyde  v.  Hyde,  L.  R.  1  P.  &  D.  130;  Story  Confl.  Laws,  §  114;  1  Burge 
Col.  &  For.  Laws,  188;  1  Blsh.  Mar.  &  Div.  5th  ed.  §§  372-376. 

2  3  Hag.  Ec.  639  ;  5  Eng.  Ec.  242.  See  also  recent  cases  of  Shaw  v.  Gould, 
L.  R.  3  H.  L.  55;  Wilson's  Trusts,  L.  R.  1  Eq.  247. 

3  See  Williams  v.  Gates,  5  Ire.  535;  Dickson  v.  Dickson,  1  Yerg.  110;  Pons- 
ford  V.  Johnson,  2  Blatch.  51;  Smith  v.  Woodworth,  44  Barb.  198. 

*  3  Smale  &  G.  481 ;  s.  c.  9  H.  L.  Gas.  193.  See  Sutton  v.  Warren,  10  Met. 
451 ;  Stevenson  v.  Gray,  17  B.  Monr.  193. 

5  Putnam  v.  Putnam,  8  Pick.  433.  See  on  this  general  subject  Lord  Brough- 
ham  in  W^irrender  v.  Warrender,  2  01.  &  E.  488 ;  cases  cited  in  note  to  2  Kent 
Com.  93 ;  references  supra  to  treatises  of  Story,  Burge,  and  Bishop.  The  marriage 
abroad  of  one  attainted  of  treason  is  lawful.  Kynnaird  v.  Leslie,  L.  R.  1  C.  P. 
389. 

4  [49] 


*  49  HUSBAND   AND  WIFE. 

riao-e,  is  applied  with  more  hesitation  than  its  converse.^ 
Citizens  sojourning  abroad,  parties  made  amenable  to  the 
general  laws  of  another  country,  and  yet  retaining  customs  of 
their  own,  quasi  foreigners  who  do  not  forfeit  their  original 
allegiance,  often  have  special  privileges  shown  them  by  the 
comity    of  nations.      Thus,    Protestants   in   a   Roman 

*  50    Catholic  country  have  been  allowed   *  to  marry  after 

their  own  forms.^  Settlers  from  foreign  parts  are  often 
permitted  to  take  their  national  customs  with  them.^  There 
are  statutes,  both  in  Great  Britain  and  the  United  States, 
which  permit  citizens  to  marry  abroad  in  presence  of  certain 
accredited  representatives  of  their  government,  as  ministers 
and  consuls  ;  and  such  marriages  are  considered  lawful, 
though  one  of  the  parties  be  a  foreigner.^  Whatever  may  be 
pronounced  by  the  courts  in  the  adopted  country  of  an  emi- 
grant, a  marriage  lawful  by  the  laws  of  his  native  land  would 
in  his  native  land  generally  be  upheld,  if  he  had  not  forfeited 
his  allegiance. 

1  Lord  Stowell,  in  Ruding  v.  Smith,  2  Hag.  Con.  371;  4  Eng.  Ec.  551,  560. 

-  But  tliis  seems  permitted  only  on  the  assumption  that  the  local  law  disqual- 
ifies. See  1  Bish.  Mar.  &  Div.  5th  ed.,  with  authorities  cited,  §  390  el  seq. ;  Kent 
V.  Burgess,  11  Sim.  361 ;  Lord  Eldon,  in  Lord  Cloncurry's  Case ;  Cruise  on  Digni- 
ties, 276. 

3  See  Ruding  v.  Smith,  and  1  Bish.  Mar.  &  Div.  supra;  Story  Confl.  Laws, 
§2  a. 

*  Lloyd  V.  Petigean,  2  Curt.  Ec.  251;  7  Eng.  Ec.  105;  Loring  v.  Thorndike, 
5  Allen,  257 ;  12  U.  S.  Stats,  at  Large,  79  ;  1860,  c.  179,  §  31.  Invading  armies 
carry  the  matrimonial  law  of  their  domicile  with  them.  See  1  Bish.  JNIar.  & 
Div.  5th  ed.  §§  399,  400  ;  Ruding  v.  Smith,  supra  ;  Lord  Ellenborough,  in  Rex  v. 
Brampton,  10  East,  282. 

See  also,  as  to  the  conflict  of  laws  relating  to  marriage,  Wharton  Confl. 
Laws  (1872),  §§  128-165.  Mr.  Wharton,  in  his  very  scholarly  work,  maintains 
that  tiiere  are  three  distinct  theories  on  this  subject:  (1st)  as  generally  main- 
tained by  English  writers  and  the  courts,  that  matrimonial  capacity  is  deter- 
mined by  the  law  of  the  place  of  marriage  ;  which  he  considers  open  to  objection ; 
(2d)  that  it  is  determined  by  the  law  of  the  marrying  parties'  home;  which  he 
also  considers  open  to  objection;  (3d)  that  as  to  marriages  at  home,  capacity 
is  determined  by  home  law,  and  as  to  marriages  abroad,  "  by  the  common  law 
of  Christendom  ;  "  and  this  last  theory  he  prefers  to  the  otliers.  lb.  §§  160-165. 
As  to  conflict  in  the  mode  of  celebrating  marriage,  see  ib.  §§  169-185. 

[50] 


THE   GENERAL   DISABILITIES   OF   COVERTURE.         *  51 


*  CHAPTER   II.  *51 

THE    GENERAL    DISABILITIES    OF    COVERTURE. 

When  the  parties  to  a  lawful  marriage  have  once  completed 
the  ceremony,  or,  as  it  is  said,  have  executed  the  contract  of 
marriage,  they  are  admitted  into  the  marriage  relation,  and 
their  mutual  rights  and  obligations  become  at  once  bounded, 
protected,  and  enforced  by  the  general  law  of  husband  and 
wife.  What  that  law  is,  will  constitute  the  topic  of  discus- 
sion in  this  and  the  succeeding  chapters.  We  have  already 
alluded  to  the  confusion  and  uncertainty  which  exist  at  the 
present  day,  and  particularly  in  many  of  the  United  States, 
in  the  law  of  husband  and  wife,  owing  to  the  transition  period 
through  which  we  seem  to  be  passing  from  the  marriage  rela- 
tion of  the  common  law  to  that  known  to  the  civil  law.^ 

Our  subject  will  be  most  conveniently  treated  by  taking  up 
the  common-law  doctrine  first  and  thoroughly  examining  its 
principles  ;  then  passing  to  the  modern  or  civil-law  doctrine, 
for  discussion  in  Hke  manner.  First,  then,  the  rights  and  dis- 
abilities of  marriage  on  the  coverture  scheme  ;  secondly,  the 
rights  and  disabilities  of  marriage  on  the  separate  existence 
scheme.  But  since  these  rights  and  disabilities  have  varied 
little,  except  as  to  the  wife's  property,  we  may  here  investi- 
gate those  general  principles  of  the  common  law  which  con- 
cern the  person,  once  and  for  all. 

The  general  principle  of  coverture,  as  defined  by  Black- 
stone  and  other  wiiters,  is  this :  that  by  marriage  the  hus- 
band and  wife  become  one  person  in  law  ;  that  is  to  say,  the 
very  being  or  legal  existence  of  the  woman  is  suspended 
during  the  *  marriage,  or,  at  least,  is  incorporated  and  *  52 
consolidated  into  that   of  the   husband,    under  whose 

1  See  Introductory  Chapter,  pp.  10-2L 

[51] 


*  52  HUSBAND  AND   WIFE. 

wing,  protection,  and  cover  she  performs  every  thing  ;  and  is 
therefore  called  in  the  law-French  a  feme-covert^  fcemina  viro 
co-operta ;  is  said  to  be  covert-haron,  or  under  the  protection 
and  influence  of  her  haron  or  lord ;  and  her  condition  during 
her  marriage  is  called  her  coverture}  For  this  reason  the 
term  applied  to  the  relation  of  husband  and  wife  in  the  old 
books  is  haron  and  feme.  Upon  this  fundamental  principle 
depend,  at  the  common  law,  the  general  rights,  duties,  and 
disabilities  of  marriage.  But  this  very  definition  shows  inac- 
curacy, to  say  nothing  of  unfairness  of  application.  Here  are 
two  conflicting  notions  :  one  that  the  existence  of  the  wife  is 
actually  lost  or  suspended  ;  the  ether  that  there  is  still  an 
existence,  which  is  held  in  subordination  to  the  will  of  her 
lord  and  master,  which  last  the  word  coverture  fitly  expresses. 
It  will  appear  in  fact  that  Avhile  some  of  the  wife's  disabilities 
seem  based  upon  the  one  notion,  others  are  based  upon  the 
latter,  and  probably  more  correct  one.  The  wife's  disabilities 
are  deemed  by  Blackstone,  "  for  the  most  part,  intended  for 
her  protection  and  benefit."  And  he  adds,  by  way  of  rhetor- 
ical period,  "  so  great  a  favorite  is  the  female  sex  of  the  laws 
of  England  !  "  a  proposition  which  his  commentators  have 
gravely  proceeded  to  dispute  and  dissect,  and,  it  must  be 
added,  not  without  good  success.^ 

The  husband's  right  of  dominion  is  therefore  fully  recog- 
nized at  the  common  law.  And  never  was  the  English  doctrine, 
despite  its  failings,  set  forth  in  more  terse  and  forcible  lan- 
guage than  in  the  words  of  Sir  Thomas  Smith  :  "  The  natu- 
ralest  and  first  conjunction  of  two  towards  the  making  a 
further  society  of  continuance,  is  of  the  husband  and  wife, 
each  having  care  of  the  family:  the  man  to  get,  to  travel 
abroad,  and  to  defend  ;  the  wife  to  save,  to  stay  at  home, 

*  53    and  to  distribute  *  that  which  is  gotten,  for  the  nurture 

of  the  children  and  family ;  which  to  maintain,  God  has 
given  the  man  greater  wit,  better  strength,  better  courage,  to 

1  1  Bl.  Com.  442;  Co.  Litt.  112;  2  Kent  Com.  129. 

'^  1  Bl.  Com.  445,  notes  by  Christian,  Hargrave,  and  others.  It  is  probable 
that  Bhickstoiie  used  this  expression  in  a  strain  of  phiyful  gallantry',  not  uncom- 
mon with  lecturers.  Even  Chancellor  Kent's  observations  are  not  free  from 
suspicion.     See  2  Kent  Com.  182,  closing  sentence  at  foot  of  the  page. 

[62] 


THE   GENERAL   DISABILITIES   OF   COVERTURE.         *  53 

compel  the  woman  to  obey,  by  reason  or  force ;  and  to  the 
woman,  beauty,  -fair  countenance,  and  sweet  M'ords,  to  make 
the  man  obey  her  again  for  love.  Thus  each  ol)eyeth,  and 
commandeth  the  other  ;  and  they  two  together  rule  tlie  house, 
so  long  as  they  remain  in  one."  ^ 

In  accordance  Avith  these  principles,  and  perhaps  too  the 
laws  of  nature  and  divine  revelation,  the  husband  is  the  head 
of  the  family  and  the  dignior  persona.  As  to  the  more  strictly 
personal  consequences  of  the  marriage  union,  his  rights  and 
duties  have  suffered  no  violent  change  at  our  modern  law.  It 
is  for  the  wife  to  love,  honor,  and  obey  :  it  is  for  tlie  husband 
to  love,  cherish,  and  protect.  The  husband  is  bound  to  fur- 
nish his  wife  with  a  suitable  home  ;  to  provide,  according  to 
his  means  and  condition  of  life,  for  her  maintenance  and 
support  ;  to  defend  her  from  personal  insult  and  wi'oug ;  to 
be  kind  to  her  ;  to  see  that  the  offspring  of  their  union  are 
brought  up  with  tenderness  and  care  ;  and  generally  to  con- 
duct himself,  not  according  to  the  strict  letter  of  the  matri- 
monial contract,  but  in  its  spirit.  So  long  as  he  does  this,  his 
authority  is  acknowledged  at  the  common  law,  and  if  the 
wife's  wishes  and  interests  clash  with  his  own,  she  must  yield. 

Marriage  necessarily  supposes  a  home  and  mutual  cohabita- 
tion. Each  party  has  therefore  a  right  to  the  society  of  the 
other.  They  married  to  secure  such  society.  And  the  obliga- 
tion rests  upon  both  to  live  togetlier  —  or,  as  the  expression 
sometimes  goes,  to  adhere.  This  is  the  universal  law.^  Its 
observance  is  essential  to  the  mutual  comfort  of  husband  and 
wife,  and  the  well-being,  if  not  the  existence,  of  their  chil- 
dren. But  to  this  rule  there  are  obvious  exceptions.  The 
wife  is  not  bound  to  live  with  her  husband,  where  he  is 
imprisoned,  or  *  has  otherwise  ceased  to  be  a  voluntary  *  54 
agent,  and  to  perform  the  duties  of  a  husband.  Nor  if 
he  is  banished  ;  for  marriage  does  not  force  the  parties  to  share 
the  punishment  of  one  another's  crimes.  This  was  the  rule 
of  the  civil  as  it  is  that  of  the  common  law.^     And  in  general 

1  Commonwealth  of  England,  Book  1,  cli.  2,  qnoted  in  Bing.  Inf.  &  Cov. 
p.  184.  2  1  Eras.  Dom.  Rel.  447,  452. 

»  Co.  Litt.  133;  1  Bl.  Cora.  443;  1  Eras.  Dom.  Rel.  448;  2  Kent  Com.  154. 

[53] 


*  54  HUSBAND   AND   WIFE. 

such  causes  as  would  justify  divorce  in  any  state  justify  the 
innocent  party  in  breaking  off  matrimonial  cohabitation  like- 
wise. But  partial  and  temporary  separation  for  purposes 
connected  with  the  husband's  profession  or  trade  —  as  for 
instance,  where  he  is  an  army  officer  —  constitutes  no  breach 
of  the  marriage  relation,  unless  continued  beyond  necessary 
and  reasonable  bounds,  or  accompanied  by  negligence  to  pro- 
vide while  absent  for  the  maintenance  of  wife  and  family. 
And  under  some  other  circumstances  cohabitation  maj'  be 
properly  allowed  to  cease  for  a  time,  without  involving  the 
breach  of  marital  obligations.^ 

Mere  frailty  of  temper  on  a  wife's  part,  not  shown  in 
marked  and  intolerable  excesses,  would  hardly  justify  a 
husband  in  withdrawing  the  protection  of  his  home  and 
society  .2 

As  there  must  be  a  home,  so  there  is  also  a  matrimonial 
domicile  of  the  parties  recognized  by  universal  law.  And  the 
husband,  as  the  dignior  persona,  has  the  right  to  fix  it  where 
he  pleases.  The  wife's  domicile  merges  in  that  of  her  hus- 
band. Grotius  says  :  "  De  clomicilio  constituere  jus  est  marito.''^  ^ 
But  this  applies  only  to  the  real  domicile  of  the  husband  ;  not 
to  a  fictitious  place  of  residence  which  he  may  take  up  for  a 
special  purpose,  or  as  an  involuntary  agent.  In  a  genuine 
sense  the  domicile  of  the  husband  becomes  that  of  the  wife, 
and  wherever  he  goes  she  is  bound  to  go  likewise ;  not,  how- 

1  See  2  Kent  Com.  181 ;  1  Fras.  Dom.  Rel.  240  et  seq. ;  ib.  447  ;  Chretien  v. 
Her  Husband,  17  jNIartin  (La.),  60.  Prima  facie,  when  the  wife  leaves  her  hus- 
band and  his  home,  and  goes  to  live  elsewhere,  she  abandons  him,  and  it  is  for 
her  to  show  that  his  conduct  justified  her  in  going.  Starkey  v.  Starkey,  21 
N.  J.  Eq.  135.  A  husband  who  witlidraws  from  cohabitation  with  his  wife  may 
be  guilty  of  desertion  though  he  continue  to  support  her.  Yeatman  v.  Yeatman, 
L.  R.  1  P.  &  D.  489.  See  more  fully  1  Bish.  Mar.  &  Div.  §§  771-810,  where  the 
whole  subject  comes  up  as  incidental  to  divorce  proceedings  ;  McClurg's  Appeal, 
66  Penn.  St.  366.  And  see  IMcCormick  v.  McCormick,  19  Wis.  172,  where  it 
did  not  appear  that  the  wife  meant  to  leave  her  husband,  or  was  unwilling  to 
cohabit,  but  only  objected  to  those  he  had  about  him,  while  he  was  at  fault  in 
encouraging  iier  to  leave  him.  As  to  whether  the  mere  refusal  of  matrimonial 
intercourse  amounts  to  desertion  justifying  divorce,  see  1  Bish.  Mar.  &  Div. 
§  778 ;  Southwick  v.  Southwick,  97  Mass.  327. 

-  Yeatman  v.  Yeatman,  L.  R.  1  P.  &  D.  489.  But  see  Lynch  v.  Lynch,  33 
Md.  328. 

[54] 


THE    GENERAL  DISABILITIES   OF   COVERTURE.         *  54 

ever,  unless  his  intent  be  bona  fide  and  without  fraud  upon 
her  property  rights.^ 

Any  contract,  therefore,  which  the  husband  may  make  with 
his  wife  or  her  friends,  before  marriage,  not  to  take  her  away 
from  the  neighborhood  of  her  parents,  is  void.  Public  policy 
repudiates  all  contracts  in  restraint  of  such  marital  rights. 
There  might  be  circumstances  under  which  such  a  promise 
would  be  reasonable,  but  at  best  it  can  create  a  moral 
obligation  *  only.  The  husband  has  the  right  to  estab-  *  55 
lish  his  domicile  at  any  time,  wherever  he  pleases,  and 
the  wife  must  follow  him  through  the  world.^ 

But  the  courts  of  our  day  hesitate  to  apply  a  rule  so  appar- 
ently harsh  as  that  announced  in  the  last  sentence.  With  the 
increasing  regard  for  female  privileges  has  grown  up  a  strong 
disposition  to  reduce  the  husband's  right  over  the  matrimonial 
domicile  to  a  sort  of  clivisiim  im2yerii(7n.  The  question  is  not 
new,  whether  reasonable  exceptions  to  this  rule  may  not 
exist ;  as,  for  instance,  where  the  husband  proposed  to  take 
the  wife  into  an  enemy's  country  while  war  was  waging,  or  on 
a  journey  perilous  to  her  life.^  Such  exceptions  may  be  jus- 
tified, it  is  generally  admitted,  on  the  ground  that  the  wife 
would  be  thereby  exposed  to  bodily  harm.  But,  whether  the 
apprehension  be  that  of  personal  violence,  or  ill  health  from 
the  fatigue  of  a  journey  or  the  change  of  climate,  little  favor 
seems  to  have  been  shown  to  the  wife  either  at  the  English 
or  Scotch  law,  unless  the  circumstances  rendered  a  change  of 
domicile  on  her  part  equivalent  to  a  moral  suicide.^  At  the 
present  day,  a  rule  less  stringent  would  doubtless  be  applied. 
Nay  more,  there  are  several  recent  decisions  in  this  country 
which  point  to  an  obligation  on  the  husband's  part  to  show 
reasonable  cause  why  his  wife  should  follow  him  wlien  he 
changes  his  abode.* 

1  1  Eras.  Dom.  Eel.  447,  448;  1  Biirgo  Col.  &  For.  Laws,  260;  Wharton 
Confl.  Laws,  §§  43-47.  See  post,  as  to  domicile  acquired  by  wife  for  divorce  in 
certain  cases. 

■^  Hair  D.  Hair,  10  Rich.  Eq.  1G3;  McAfee  v.  Kentucky  University,  7  Bush, 
135.  A  wife  living  apart  from  licr  husband  cannot  liave  a  separate  domicile  for 
testamentary  purposes.     Paulding's  Will,  1  Tuck.  (N.  Y.)  47. 

i  See  1  Eras.  Dom.  Rel.  448.   , 

4  Bishop  V.  Bishop,  30  Penn.  St.  412 ;  Gleason  v.  Gleason,  4  Wis.  ^A ;  PoweU 

[55] 


*  55  HUSBAND   AND   WIFE. 

This  later  uncertainty  in  the  Law  is  unfortunate.  Where 
a  pair  disagree  in  the  choice  of  a  home,  either  the  right  of 
decision  must  belong  to  one  of  them  or  the  court  should  sit 
as  umpire.  No  one  has  suggested  that  the  wife  should  choose 
the  domicile,  nor  can  judicial  interference  be  well  called  in, 
except  to  divorce  the  parties.  Yet,  without  a  home  in  com- 
mon, of  what  avail  is  matrimony  ?  We  cannot  but  regret  that 
any  of  our  courts  should  seem  to  legalize  domestic  discord  ; 
that  there  should  be  good  American  authority  to  sanc- 

*  56    tiou  the  wife's  refusal  *  to  accompany  her  husband  on 

any  such  trivial  pretext  as  "  the  dislike  to  be  near  his 
relatives."!  Perhaps,  however,  the  harsh  remedy  usually 
sought  to  be  applied  in  modern  cases  —  divorce  for  the  wife's 
wilful  desertion — may  tempt  our  tribunals  to  relax  the  old 
doctrine  of  conjugal  obedience  for  her  benefit.  For,  after  all, 
the  decision  is  in  favor  of  prolonging  the  marriage  relation. 

The  English  rule  as  to  the  wife's  duty  of  adherence  still 
continues  strict.  A  wife  recently  petitioned  for  divorce,  on 
the  ground  of  her  husband's  desertion.  The  facts  showed 
that  shortly  after  her  marriage  she  went  with  her  husband  to 
Jamaica,  where  he  held  an  appointment  from  which  he  derived 
not  more  than  .£100  a  year,  and  in  consequence  of  his  slender 
income  she  had  to  put  up  with  some  hardship.  Her  health 
suffered,  and  in  less  than  a  year,  namely,  in  1846,  she  returned 
to  England.  Her  husband  continued  abroad,  during  the 
greater  part  of  the  time  at  Jamaica,  where  he  succeeded  in 
getting  a  more  lucrative  appointment.  When  she  left  him 
for  England  he  acted  kindly  to  her,  promised  to  allow  her 
<£30  a  year,  but  made  no  arrangement  for  a  permanent  separa- 
tion. Their  correspondence  continued  until  1851,  when  the 
husband  asked  her  to  return,  and  provided  funds  for  her  pas- 
sage, but  she  wrote  that  her  health  would  not  permit  her  to 
do  so.  Here  all  the  correspondence  and  intercourse  ceased 
until  1856,  when  an  allowance  was  again  effected  through  the 
intervention  of  a  relative ;  this  the  husband  continued  until 
1860,  and  then  stopped  it.     He  appears  to  have  led  a  loose 

r.  Powell,  29  Vt.  148.     See  Moffatt  v.  Moffatt,  5  Cal.  280;  Cutler  v.  Cutler, 
2  Brews.  (Pa.)  511. 

1  Powell  V.  Powell,  supra. 

[56] 


THE   GENERAL  DISABILITIES   OF   COVERTURE.        *  56 

life  after  his  wife's  refusal  to  return.  The  court  held  that 
these  circumstances  did  not  constitute  desertion  on  the  hus- 
band's part,  nor  entitle  her  to  divorce.^ 

As  no  legal  process  can  safely  be  enforced  to  compel  hus- 
band and  wife  to  live  together,  against  the  will  of  either, 
so  the  peace  *  of  society  forbids  that  they  should  sue  *  57 
one  another  for  damages  for  breach  of  the  marital  obli- 
gations. Here  again  is  marriage  sui  generis,  and  not  like 
other  contracts.  But  the  failure  of  the  one  to  perform  recog- 
nized duties  may  sometimes  absolve  the  other  from  certain 
corresponding  obligations.  Thus,  if  the  wife  leaves  her  home 
without  justifiable  cause,  the  husband  may  refuse  to  support 
her.2  If  the  husband  is  cruel,  or  makes  his  home  unfit  for  a 
chaste  woman  to  .live  in  (which  is  a  species  of  cruelty),  the 
wife  may  leave  and  compel  him  to  support  her  elsewhere.^ 
This  is  well  recognized  law.  In  general,  however,  such  vio- 
lation of  marital  obligations  is  effectually  punishable,  not 
by  enforcing  them,  but  by  putting  an  end  to  the  relation 
altogether.* 

Inasmuch  as  the  husband  is  entitled  to  his  wife's  society, 
he  may  recover  her  from  any  person  who  would  withhold  or 
withdraw  her  from  him.  This  is  a  well-understood  principle 
the  world  over.^  And  the  common  law  gives  him  the  right 
to  sue  for  damages  all  persons  who  seek  to  entice  her  away.^ 
But  in  such  cases  malice  and  improper  motive  are  always 
to  be  considered  ;  and  parents  and  near  relatives  stand  on  a 
different  footing  from  strangers.  So  is  the  previous  conduct 
of  the  husband  towards  his  wife  a  material  element  to  be 
considered ;    since  this,  and  not  the  interference  of  others, 

1  Keech  v.  Keecli,  L.  R.  1  P.  &  D.  G41  (1868).  Adultery  being  proved,  how- 
ever, divorce  was  granted  on  tliat  ground. 

•^  2  Kent  Com.  147  ;  Manby  v.  Scott,  1  Mod.  124;  1  Bl.  Com.  443. 

8  Houliston  V.  Smyth,  3  Bing.  127.     And  see  infra,  as  to  wife's  necessaries. 

*  See  1  Bish.  Mar.  &  Div.  §  771;  1  Eras.  Dom.  Rel.  452;  Adams  i;.  Adams, 
100  Mass.  365 ;  Briggs  v.  Briggs,  20  Mich.  34. 

5  1  Eras.  Dom.  Rel.  240,  241. 

6  1  Cliitty  Plead.  91 ;  Hutcheson  v.  Peck,  5  Johns.  196  ;  Friend  v.  Thomp- 
son, Wriglit,  636;  Rabe  v.  Hanna,  5  Ham.  630;  Bennett  v.  Smith,  21  Barb. 
439 ;  Barnes  v.  Allen,  30  Barb.  663. 

[57] 


*  5T  HUSBAND   AND   WIFE. 

may  have  occasioned  the  separation.  It  is  one  thing  to  ac- 
tively promote  domestic  discord,  but  quite  another  to  har- 
bor from  motives  of  kindness  and  humanity  one  who  seeks 
shelter  from  the  oppression  of  her  own  lawful  protector. 

Yet  such  conduct,  whatever  the  motives,  is  exceedingly  peril- 
ous on  the  part  of  strangers,  generally  open  to  misconstruction, 
and  never  to  be  encouraged.     They  should  leave  the 

*  58    parties  to  *  their  lawful  remedies  against  one  another. 

With  parents  it  is  different.  There  are  several  cases  in 
the  American  reports  where  a  father  is  not  only  held  to  be 
absolved  from  liability  for  sheltering  his  daughter  who  has  fled 
from  a  drunken  and  profligate  husband,  but  even  stimulated 
to  do  so.  "  A  father's  house,"  says  Chancellor  Kent,  "  is 
always  open  to  his  children ;  and  whether  they  be  married  or 
unmarried,  it  is  still  to  them  a  refuge  from  evil  and  a  conso- 
lation in  distress.  Natural  aff'ection  establishes  and  conse- 
crates this  asjdum."  ^  But  this  does  not  justify  even  a  parent 
in  hostile  interference  against  the  husband ;  for  the  latter's 
rights  are  still  superior ;  and  the  father  must  give  up  his 
daughter,  and  the  marriage-offspring,  whenever  she  wishes  to 
return,  unless  the  proper  tribunal  has  decreed  otherwise ; 
though  he  might,  we  suppose,  by  fair  arguments,  urged  to 
promote  her  true  good,  seek  to  dissuade  her  from  returning. 
The  legal  doctrine  seems  to  be  this,  that  honest  motives  may 
shield  a  parent  from  the  consequences  of  indiscretion,  while 
adding  nothing  to  his  right  of  actual  control ;  that  a  husband 
forfeits  his  right  to  sue  others  for  enticement,  where  his  own 
misconduct  justified  and  actually  caused  the  separation,  and 
so  long  as  it  continues  voluntary  on  the  wife's  part ;  but  that 
otherwise  his  remedy  is  complete  against  all  persons  whomso- 
ever who  have  lent  their  countenance  to  any  scheme  for 
breaking  up  his  household. 

A  curious  case  of  this  sort  came  before  the  Supreme  Court 
of  North  Carolina  in  1849.  The  defendant  had  enticed  away 
the  wife  of  the  plaintiff.  The  two  afterwards  entered  into  an 
agreement  that  the  defendant  should  keep  the  plaintifi'  's  wife 
and  child  at  his  own  home,  and  should  raise,  educate,  and 

1  Hutcheson  v.  Peck,  supra.  See  also  Friend  v.  Thompson,  Bennett  v. 
Smith,  supra. 

[58] 


THE   GENERAL  DISABILITIES   OF   COVERTURE.        *  58 

provide  for  the  child  b}'  apj)ropriating  the  portion  of  property 
formerly  intended  for  the  mother's  provision  ;  that  he  should 
not  be  liable  for  having  enticed  the  wife  away ;  and  that  the 
plaintiff  might  visit  his  wife  and  child  not  exceeding 
four  or  *  five  days  at  a  time.  The  wife  was  not  made  a  *  59 
party  to  the  contract,  though  it  appeared  to  have  been 
made  with  her  approval.  The  plaintiff  afterwards  rescinded 
the  agreement,  demanded  his  wife,  and,  upon  refusal  of  the 
defendant  to  give  her  up,  sued  him  in  damages.  The  court 
sustained  him;  pronouncing  the  contract  to  be  "  neither  in 
form  or  substance  a  contract  for  a  sej)aration,  but  simply  a 
license  to  harbor  the  wife  and  child,  securing  the  defendant 
against  any  legal  responsibility  for  so  doing  until  withdrawn." 
And  it  was  further  intimated  that  such  a  contract  was  abso- 
lutely void  as  against  public  policy.^ 

In  a  ruder  state  of  society  the  husband  frequently  main- 
tained his  authority  by  force.  The  old  common  law  recog- 
nized the  right  of  moderate  correction,  which,  according  to 
Blackstone,  was  deemed  a  privilege  by  the  lower  orders  in 
his  day .2  The  civil  law  went  still  further,  permitting,  in  cer- 
tain gross  misdemeanors,  violent  flogging  with  whips  and 
rods.'^  But  since  the  time  of  Charles  II.  the  wife  has  been 
regarded  more  as  the  companion  of  her  husband ;  and  this 
right  of  chastisement  may  be  regarded  as  exceedingly  ques- 
tionable at  the  present  day.  The  rule  of  love  has  superseded 
the  rule  of  force.  Few  cases  of  importance  are  to  be  found 
on  this  subject.  In  England,  not  many  years  ago,  where  a 
wife  sought  divorce  from  bed  and  board  for  cruelty,  it  was 
shown  that  the  husband  had  spit  upon  her,  pushed  and 
dragged  her  about  the  room,  and  once  slapped  her  face  ;  and 
upon  this  proof  the  divorce  was  granted.*  The  right  to  inflict 
corporal  punishment  upon  the  wife  seems  not  to  have  been 
favored  in  this  country,  and  its  exercise  would  now  generally 

1  Barbee  v.  Armstead,  10  Ired.  530.  See  also  1  Burge  Col.  &  For.  Laws, 
238,  for  a  like  doctrine  at  the  civil  law.  ~  1  Bl.  Com.  444,  445. 

"'  Flwjidlis  et  fustlhus  acriter  verherare  ttxorem.     See  1  Bl.  Com.  445. 

*  Saunders  v.  Saunders,  1  Rob.  Ec.  549.  And  see  1  Bish.  Mnv.  &  Div. 
5th  ed.  §§  748,  754 ;  Giiolston  ;;.  Gliolston,  31  Geo.  625  ;  Pillar  r.  Pillar,  22  Wis. 
C58;  Edmonds'  Appeal,  57  Penn.  St.  232;  Turner  v.  Turner,  44  Ala.  437. 

[59] 


*59  HUSBAND   AND  WIFE. 

justify  proceedings  for  a  divorce.^  It  may  be  added  that  the 
wife  should  not  chastise  her  husband  ;  nor  provoke  harsh 
*  60  treatment  by  her  own  misconduct.^  *  But  either  spouse 
may  use  force  in  self-defence.  And  the  husband  may 
restrain  his  wife  from  acts  of  violence  against  others  as  well 
as  himself ;  certainly  wherever  the  law  makes  him  answerable 
in  damages  for  her  misbehavior.^ 

The  right  of  gentle  restraint  over  the  wife's  person  rests 
upon  better  authority  than  that  of  chastisement.  This  right, 
however,  depends  upon  the  proposition  that  the  husband  is 
dignior  persona.  And  its  exercise  is  often  to  be  justified  in 
the  courts  on  the  same  grounds  ;  namely,  that  he  must  answer 
to  others  for  his  wife's  conduct.  Blackstone  says  that  in  case 
of  any  gross  misbehavior  the  husband  can  restrain  his  wife  of 
her  liberty.  The  later  expression  of  Kent  is,  that  he  may 
resort  to  "  gentle  restraint."  ^  Strong  instances  for  the  exer- 
cise of  this  right  occur  where  the  wife  has  eloped  with  a 
libertine  and  the  husband  wishes  to  bring  her  home,  or  where 
she  purposes  an  elopement  and  he  seeks  to  prevent  it.^  So 
restraint  may  be  justified  where  she  becomes  insane,  threatens 
him  with  danger,  or  wantonly  destroys  his  property.  And 
by  virtue  of  the  husband's  authority  over  his  own  household, 
he  might  be  allowed,  if  not  by  physical  force,  at  least  by 
moral  coercion,  to  regulate  her  movements  so  as  to  prevent 
her  from  going  to  places,  associating  with  people,  or  engaging 
in  pursuits  disapproved  by  himself  on  rational  grounds.  This 
doctrine  has  been  asserted  in  England  ;  and  Mr.  Fraser  car- 
ries it  to  the  extent  of  forbidding  her  relatives  to  visit  her ; 
"  for,"  he  adds,  "  though'  the  wife  may  be  very  amiable,  her 

1  In  State  v.  Rhodes,  1  Phill.  (N.  C.)  453,  the  right  of  moderate  correction 
is  recently  claimed.  But  tlie  opposite  rule  is  announced  in  Fulgham  r.  State, 
46  Ala.  143.  Not  justified  though  the  wife  be  drunk  or  insolent.  Common- 
wealth V.  McAfee,  108  Mass.  458. 

2  Knight  V.  Knight,  31  Iowa,  451,  and  cases  supra;  Prichard  v.  Prichard, 
3  Swab.  &  T.  523. 

3  2  Kent  Com.  181 ;  People  v.  Winters,  2  Parker  (N.  Y.  Cr.),  10 ;  1  Bl.  Com. 
445;  Richards  v.  Richards,  1  Grant,  389. 

4  2  Kent  Com.  181  ;  1  Bl.  Com.  445.     See  1  Bish.  supra,  §  756. 

5  So  strongly  does  the  common  law  detest  conjugal  unfaithfulness,  that  the 
hv.sland  who  kills  his  wi^e  or  her  paramour  in  the  act  of  adultery  is  only  guilty 
of  manslaughter.     See  Regina  v.  Kelly,  2  Car.  &  K.  814. 

[60] 


THE   GENERAL   DISABILITIES   OF   COVERTURE.        *  60 

connections  may  not  be  so."  ^  But  this  rule  is  to  be  laid 
down  with  great  caution,  and  it  may  be  considered  especially 
unpopular  in  America.  Mr.  Justice  Coleridge,  in  an  English 
case,  observes,  that  the  husband's  right  must  not  be 
*  exercised  unnecessarily  or  with  undue  seventy;  and  *  61 
that  the  moment  the  wife,  by  her  return  to  conjugal 
duties,  makes  the  restraint  of  her  person  unnecessary,  such 
restraint  becomes  unlawful.^  For  unreasonable  and  improper 
checks  upon  her  liberties,  the  wife  may  have  relief  on  habeas 
corpus.  But  the  writ  is  not  available  for  the  husband  to 
secure  the  person  of  his  wife,  voluntarily  absenting  herself 
from  his  hruse.'^ 

Husband  and  wife  may  be  indicted  for  assault  and  battery 
upon  each  other."^  This  is  a  means  of  redress  not  unfrequently 
sought  against  cruel  husbands. 

The  custody  of  children  belonged  at  common  law  to  the 
father.  Blackstone  observes,  "  A  mother,  as  such,  is  entitled 
to  no  power,  but  only  to  reverence  and  respect."  ^  But  by  an 
English  statute,  passed  in  1839,  the  Court  of  Chancery  is 
permitted  to  interfere  and  award  the  custody  of  children  to 
such  parent  as  may  be  deemed  most  suitable.  Its  special 
object  was  to  enal)le  married  women  who  should  be  ill-treated 
by  their  husbands  to  assert  their  rights  without  the  fear  of 
being  separated  from  their  offspring.^  In  this  country,  as  we 
shall  see  hereafter,  the  tendency  of  legislation  is  to  place  the 
wife  upon  an  equal  footing  with  her  husband  in  this  respect. 

When  we  come  to  the  property  rights  of  married  women, 
the  inequalities  of  the  common  law  are  plainly  seen.     The 

i  1  Eras.  Dom.  Rel.  459. 

2  In  re  Coclirane,  8  Dowl.  P.  C.  631.  Force,  whether  physical  or  moral,  sys- 
tematically exerted  to  compel  the  submission  of  a  wife,  in  such  a  manner,  and 
to  such  a  degree,  and  during  such  a  length  of  time  as  to  injure  her  healtii  and 
threaten  disease,  is  legal  cruelty.  Kelly  v.  Kelly,  L.  II.  2  F.  &  D.  31 ;  Bailey  v. 
Bailey,  97  Mass.  373. 

•»  Sandiland,  Ex  parte,  12  E.  L.  &  Eq.  403. 

*  Bradley  v.  State,  Walker,  156 ;  State  v.  Mabrey,  64  N.  C.  692. 

6  1  Bl.  Com.  453. 

6  2  &  3  Vict.  c.  54  ;  Warde  v.  Warde,  2  Ph.  786.  See  infra,  Parent  and  Child, 
ch.  3,  where  this  subject  is  considered  at  length. 

[61] 


*  61  HUSBAND   AND   WIFE. 

husband  yields  to  his  wife  no  participation  whatever  in  his 
own  property,  whether  acquired  before  or  during  the  con- 
tinuance of  the  marriage  relation,  except  a  certain  right  of 
inheritance  to  his  goods  and  chattels,  of  which  he  can  gener- 
ally deprive  her  by  his  will  and  testament,  and  also  dower  in 
his  real  estate,  which  is  her  only  substantial  privilege.  In 
return  for  this,  she  parts  with  all  control,  for  the  time 
being,  over  her  own  property,  whensoever  and  howsoever 
obtained,  bj^gift,  grant,  purchase,  devise,  or  inheritance  ; 

*  62    *  gives  him  outright  her  things  personal  in  possession ; 

allows  him  to  appropriate  to  himself  all  outstanding 
demands,  known  in  law  as  her  choses  in  action^  or  incorporeal 
personal  property ;  parts  with  the  usufruct  of  her  real  estate, 
creating  likewise  a  possible  encumbrance  upon  it  in  the  shape 
of  tenancy  by  the  curtesy  ;  and  finally  takes,  if  she  survives 
him,  only  her  real  estate,  such  of  her  personal  property  as 
remains  undisposed  of  and  unappropriated,  with  a  few  articles 
of  wearing  apparel  and  trinkets  called  paraphernalia.  She 
cannot  restrain  his  rights  by  will.  She  is  not  allowed  to  ad- 
minister on  his  personal  estate  in  preference  to  his  own  kin- 
dred, though  the  whole  of  it  were  once  hers  ;  while  he  can 
administer  on  her  estate  for  his  own  benefit  and  exclude  her 
kindred  altogether,  even  from  participation  in  the  assets. 
Thus  unequal  are  the  property  rights  of  husband  and  wife  by 
the  strict  rule  of  coverture.  We  speak  not  here  of  recent 
statutory  benefits  conferred  upon  the  wife  ;  nor  of  that  rehef 
which  equity  affords  in  permitting  projDerty  to  be  held  to  the 
wife's  separate  use,  and  giving  her  a  provision  from  her  choses 
in  action,  when  the  husband  seeks  its  aid  in  appropriating 
them  to  his  own  use  ;  but  of  what  is  to  be  properly  termed 
the  common  law  of  husband  and  wife.^ 

Some  recompense  is  afforded  to  the  wife  for  the  loss  of  her 
fortune,  in  the  rule  that  her  husband  shall  pay  her  debts  con- 
tracted while  a  feme  sole  ;  that  is,  unmarried.  And  while 
coverture  lasts  he  is  liable  for  all  just  de])ts  iiicurred  in  her 
support.  He  has  even  been  held  guilty  of  murder  in  the 
second  degree  wlien  he  has  suffered  her  to  die  for  w\ant  of 

1  See  1  Bl.  Cora.  4-42-446,  and  notes,  by  Christian,  Hargrave,  and  others  ; 
2  Kent  Com.  130-143;  and  chapters  infra. 

[62] 


THE   GENERAL  DISABILITIES   OF   COVERTURE.        *  62 

proper  siiiDplies.^  The  wife  cannot  make  a  contract  so  as  to 
bind  herself ;  but  in  this,  and  other  cases  of  express  or  implied 
authority,  she  can  bind  her  husband,  and  so  secure  a  main- 
tenance. That  which  cannot  be  enforced  hy  the  wife  as  a 
matter  of  obligation  is  often  attained  at  the  common  law  in 
some  indirect  way.^ 

*  So  too  the  husband  is  liable  for  the  frauds  and  inju-  *  63 
ries  of  the  wife,  committed  during  coverture  ;  being  sued 
either  alone  or  jointly  with  her,  in  accordance  with  the  legal 
presumption  of  coercion  in  such  cases.  And  he  must  respond 
in  damages,  whether  she  brought  him  a  fortune  by  marriage 
or  not.  But  this  rule  does  not  apply  to  crimes,  excejjt  that 
the  law  shows  the  wife  a  certain  indulgence  where  a  similar 
presumption  can  be  alleged  on  her  behalf.  On  the  other 
hand,  the  husband  takes  the  benefit  of  such  injuries  as  she 
may  suffer,  by  suing  with  her  and  appropriating  the  com- 
pensation by  way  of  damages  to  himself.^ 

We  ma}^  add  that  the  wife  is  relieved  of  the  disabilities  of 
coverture  and  placed  upon  the  footing  of  a  feme  sole  ^  with  the 
privilege  to  contract,  sue  and  be  sued,  on  her  own  behalf,  in 
one  instance,  namely,  where  her  husband  has  abjured  the 
realm  or  is  banished ;  for  he  is  then  said  to  be  dead  at  the 
law."^  And  the  necessity  of  the  case  furnishes  tlie  strongest 
argument  for  this  exception. 

Some  of  the  disabilities  of  the  marriage  relation  are  f)laced 
upon  both  parties  at  the  common  law  ;  partly  because  of 
the  want  of  mutuality  where  coverture  exists ;  partly  from 
considerations  of  public  policy.  Tlius  husband  and  wife  can- 
not make  gifts  or  sales  to  one  another  during  coverture, 
though  the  same  parties  might  have  done  so  before  and  in 
contemplation  of  marriage.  Nor  can  they  in  other  respects 
contract  or  enter  into  covenants  with  one  another.^     Nor  can 

1  Reg.  r.  Plummer,  1  Car.  &  K.  600. 

2  Ch.  3,  infra.     See  1  Bl.  Com.  442  ;  2  Kent  Com.  143-14<J. 
8  1  Bl.  Com.  443;  2  Kent  Com.  149,  150.     See  ch.  4. 

*  1  Bl.  Com.  443;  2  Kent  Com.  164.     See  chs.  3,  17. 

s  Lord  Ilardwicke,  in  Lannoy  v.  Duke  of  Atliol,  2  Atk.  448;  1  Bl.  Com.  442; 
2  Kent  Com.  129.  See  ch.  16.  The  married  women's  acts  in  this  country  have 
changed  the  common  law  greatly  as  to  the  mutual  right  of  suit. 

[63] 


*  6X,j  HUSBAND   AND   WIFE. 

one  sue  the  other.     But,  as  we  shall  hereafter  see,  equity 
introduce^  a  different  principle. 

One  of  the  most  important  of  the  mutual  disabilities  of  the 
marriage  state  is  the  disqualification  of  husband  and  wife 
to  testify  as  witnesses  in  the  courts  for  or  against  one  an- 
other. Blackstone  places  this  prohibition  on  a  technical 
*  64  ground, —  unity  *  of  the  person;  for,  he  says,  if  they 
testify  in  behalf  of  one  another  they  contradict  the 
maxun,  "  Nemo  proprid  causd  testis  esse  debet ;  "  and,  if  against 
one  another,  that  other  maxim,  "  Nemo  tenetur  se  ipsum  accu- 
sare.'"''  ^  He  also  suggests  interest  as  another  ground  for  the 
rule.  But  a  more  solid  reason  than  either  is  that  of  public 
policy.  "  The  happiness  of  the  married  state,"  says  Mr. 
Greenleaf,  "  requires  that  there  should  be  the  most  unlimited 
confidence  between  husband  and  wife  ;  and  this  confidence 
the  law  secures,  by  providing  that  it  shall  be  kept  for  ever 
inviolable  ;  that  nothing  shall  be  extracted  from  the  bosom  of 
the  wife  which  was  confided  there  by  the  husband."  ^ 

So  unyielding  is  this  rule,  that  mutual  consent  will  not 
authorize  the  breach  of  it.^  Whether  the  suit  be  civil  or  crim- 
inal, in  law  or  at  equity,  it  matters  not.  And  after  coverture 
has  terminated  by  death  or  divorce,  still  the  prohibition  lasts 
as  to  all  which  took  place  while  the  relation  existed.*  The 
disal)ility  of  the  husband  is  in  this  respect  as  great  as  that  of 
the  wife.^  So  far,  indeed,  has  the  prohibition  been  carried, 
that  in  one  case,  where  the  defendant  married  a  witness  after 
she  had  been  summoned   into  court,  she  was  forbidden  to 

1  1  Bl.  Com.  443. 

2  1  Greenl.  Evid.  §  254.  See  also  2  Kent  Com.  178-180,  to  tlie  same  effect. 
See  Chapman,  J.,  in  Peaslee  v.  McLoon,  16  Gray,  488 ;  Baldwin  v.  Parker,  99 
Mass.  79. 

2  1  Greenl.  Evid.  §  340,  and  cases  cited  ;  Lord  Hardwicke,  in  Barker  v.  Dixie, 
cas.  temp.  Ilardw.  264;  Davis  i;.  Dinwoody,  4  T.  R.  679,  per  Lord  Kenyon  ; 
contra,   Pedley  v.  Wellesley,  3   Car.   &  P.  558;  2  Kent  Com.  179. 

*  Monroe  v.  Twistleton,  cited  in  Averson  v.  Lord  Kinnaird,  6  East,  192 ;  Doker 
i;.  Easier,  Ky.  &  M.  198 ;  Stein  v.  Bowman,  13  Pet.  223 ;  1  Greenl.  Evid.  §  337. 
See  also  Terry  v.  Belcher,  1  Bailey,  568;  State  v.  Jolly,  3  Dev.  &  Bat.  110; 
Barnes  v.  Camack,  1  Barb.  392.     But  see  Dickerraan  v.  Graves,  6  Cush.  308. 

5  See  cases  cited  in  1  Greenl.  Evid.  §  334.  And  see  Turner  v.  Cook,  36  Ind. 
129;  Richards  v.  Burden,  31  Iowa,  305;  Miller  v.  State,  45  Ala.  25;  Rea  v. 
Tucker,  51  111.  110;  Succession  of  Wade,  21  La.  Ann.  343. 

[64] 


J 


THE   GENERAL   DISABILITIES   OF   COVERTURE.        *  64 

testify.^  The  rule  applies  alike  to  evidence  of  declarations 
made  by  husband  and  wife  for  or  against  one  another  and  to 
their  testimony  in  person.^  Nor  is  a  wife  a  competent  attest- 
ing witness  to  a  will  which  contains  a  devise  to  her  husband.^ 

This  rule  of  exclusion  applies  only  to  persons  occupy- 
ing the  *  bona  fide  relation  of  husband  and  wife  ;  not,  of  *  Qb 
course,  to  parties  in  immoral  cohabitation.  But  at  the 
same  time  the  courts  lean  kindly  towards  prima  facie  mar- 
riages, and  make  no  rigid  investigation.^  The  policy  of  the 
rule  is  evidently  to  treat  as  privileged  communications  all 
that  passes  between  persons  supposing  themselves  lawfully 
married,  and  at  all  events  not  to  prejudice  the  rights  of  the 
innocent  party  to  an  invalid  marriage  ;  but  the  rule  has  not 
alwaj^s  been  carried  to  such  an  extent. 

Some  exceptions  exist  to  the  rule,  founded  mainly  on  con- 
siderations of  public  policy.  Thus  the  wife  may  testifj^  as  to 
her  forcible  abduction  and  marriage  ;  but  in  such  cases  she 
is  hardly  to  be  considered  the  wife.^  In  general,  husband 
and  wife  can  make  criminal  complaints  and  testify  against 
one  another  as  to  personal  injuries ;  for  this  the  rule  of  self- 
preservation  requires.^  High  treason  also  was  formerly  held 
an  exception  to  the  rule  ;  for  the  allegiance  due  to  the  crown 
was  said  to  be  paramount  to  all  private  considerations ;  but 
this  is  not  probably  good  law  at  the  present  day.'    The  wife's 

'  Pedley  v.  Wellesley,  3  Car.  &  P.  558.  The  authority  of  this  case  seems 
questionable. 

'i  1  Green!.  Evid.  §  341 ;  Alban  v.  Pritcliett,  G  T.  R.  680;  Denn  v.  Wiiite,  7 
T.  R.  112 ;  Kelly  v.  Small,  2  Esp.  716.     See  Cook  v.  Burton,  5  Bush,  64. 

3  Sullivan  v.  Sullivan,  106  Mass.  474.  The  Massachusetts  rule  is  contrary 
to  that  of  New  "York  and  Maine.     See  authorities  cited  in  this  case. 

*  1  Greenl.  Evid.  §  339,  and  cases  cited;  2  Stark.  Evid.  400  ;  Bull.N.  P.  287  ; 
Campbell  v.  Twemlow,  1  Price,  81.  So  as  to  the  wife  of  a  freedman.  Hampton 
V.  State,  45  Ala.  82.  See  Hill  v.  State,  41  Geo.  484.  The  rule  of  competency 
does  not  extend  to  a  mistress.     Dennis  v.  Crittenden,  42  N.  Y.  542. 

5  2  Russ.  on  Crimes,  605,  606 ;  1  Bl.  Com.  443  ;  1  Greenl.  Evid.  §  343,  and 
cases  cited  in  note. 

<>  See  ibid. ;  and  Lord  Mansfield,  in  Bentley  v.  Cooke,  3  Dougf.  422 ;  1  East 
P.  0.  455.  But  see  Lord  Thurlow,  in  Sedgwick  v.  Walkins,  1  Ves.  49.  In  a 
prosecuti(m  against  a  wife  and  her  paramour  for  adultery,  tlie  husband  may  tes- 
tify against  tlie  wife.  State  v.  Bennett,  31  Iowa,  24.  Wife  allowed  to  testify 
against  husband  for  using  instrument  with  intent  to  procure  her  miscarriage. 
State  V.  Dyer,  59  Me.  303.     See  also  Matthews  v.  State,  32  Te.x.  117. 

■J  1  Greenl.  Evid.  §  345,  and  authorities  cited  ;  contra,  4  Bl.  Com.  29. 

5  [65] 


*  65  HUSBAND   AND   WIFE. 

testimony  has  been  admitted  as  to  some  peculiar  secret  facts. ^ 
Dying  declarations  of  one  are  admissible  to  charge  the  other 
with  murder.  And  in  collateral  proceedings,  only  remotely 
aftecting  their  mutual  interests,  their  evidence  is  admissible 
though  it  may  tend  to  criminate  or  contradict  or  subject  the 
other  to  a  legal  demand  ;  as  in  a  suit  relating  ^to  a  pauper  set- 
tlement, where  the  wife's  testimony  tends  to  convict  her  hus- 
band of  bigamy.^  Or,  in  collateral  proceedings,  to  prove  the 
fact  that  they  were  husband  and  wife  at  a  certain  time.^ 

*  GG    To  this  we  may  add,  that  the  wife's  declarations  *  may 

be  given  in  evidence  for  or  against  her  husband,  where 
material,  as  part  of  the  res  gestce ;  as  in  a  suit  regarding  an 
insurance  policy  where  she  is  the  party  insured ;  in  an  action 
against  the  husband  for  her  board,  he  having  turned  her  out 
of  doors ;  and,  in  general,  wherever  she  acts  as  his  agent.^ 
Where  several  are  tried  together  for  a  joint  offence,  the  wife 
of  one  is  not  a  good  witness  against  the  others,  so  long  as 
her  testimony  might  affect  her  husband's  case  ;  but  if  he  has 
already  been  convicted  or  acquitted,  or  the  grounds  of  defence 
for  each  are  entirely  distinct,  the  rule  is  otherwise.^  Both 
husband  and  wife  may  testify,  after  the  relation  has  termi- 
nated, as  to  facts  which  came  to  each  other's  knowledge  by 
means  equally  accessible  to  any  person  not  standing  in  that 
relation ;  for  here  the  same  principle  applies  as  in  the  case  of 
privileged  communications  between  attorney  and  client.*^ 
There  have  been  some  important  changes  introduced  into 

1  Kex  V.  Eeading,  cas.  temp.  Hardw.  79,  82;  Katcliff  v.  Wales,  1  Hill,  63;  1 
Greenl.  Evid.  §  344. 

'i  1  Greenl.  Evid.  §  342;  Fitch  v.  Hill,  11  Mass.  280;  Griffin  d?  Brown,  2  Pick. 
308  ;  2  Stark.  Evid.  401.     And  see  Fraim  v.  Frederick,  32  Te.K.  204. 

3  Leapliart  v.  Lenphart,  1  S.  C.  n.  s.  190.  See  Leigliton  v.  Sheldon,  16 
Minn.  243;  Denison  v.  Denison,  35  Md.  361. 

4  See  Averson  v.  Lord  Kinnaird,  6  P'ast,  188  ;  Walton  i-.  Green,  1  Car.  &  P. 
621 ;  Thomas  v.  Hargrave,  Wriglit,  505 ;  and  other  cases  cited  in  note  to  1 
Greenl.  Evid.  §  342.     But  see  Brown  v.  Laselle,  6  Blackf.  147. 

5  Hall  P.  C.  301  ;  Dalt.  Just.  c.  Ill ;  1  Greenl.  Evid.  §  335,  and  notes  ;  1  Phil. 
Evid.  75  n. ;  Regina  v.  Williams,  3  Car.  &  P.  658  ;  Hex  r.  Locker,  5  Esp.  107. 
The  husband  of  one  ciiarged  as  an  accessory  is  not  a  competent  witness  in 
favor  of  one  ciiarged  as  the  principal.  State  v,  Ludwick,  Phill.  (N.  C.)  401. 
And  see  Blake  v.  Lord,  16  Gray,  387  ;  State  v.  Mooney,  64  N.  C.  54. 

s  1  Greenl.  Evid.  §338;  Coffin  v.  Jones,  13  Pick.  446;  Williams  v.  Baldwin, 
7  Vt.  506  ;  Cornell  v.  Vanartsdalen,  4  Barr,  304  ;  English  v.  Cropper,  8  Bush,  292. 
[66] 


THE   GENERAL  DISABILITIES   OF  COVERTURE.         *  QQ 

the  law  of  evidence  in  some  parts  of  this  countiy  by  statute  ; 
such  as  permitting  interested  persons  to  testify  in  their  own 
suits.  Where  the  okl  doctrine  prevails,  the  exclusion  of  the 
husband,  by  reason  of  direct  interest,  operates  to  exclude  his 
wife  likewise.^  So  the  husband  cannot  be  a  witness  in  a  con- 
troversy respecting  his  wife's  separate  estate,  though  in  respect 
to  other  parties  concerned  he  might  be  competent.^  The  Eng- 
lish Evidence  Act  of  1853,  16  &  17  Vict.  c.  83  (which  has 
been  substantially  enacted  in  some  parts  of  this  country), 
renders  husbands  and  their  wives  competent  and  compellable 
witnesses  for  each  other,  except  in  criminal  cases  and  in 
cases  of  adultery  ;  *  but  neither  shall  be  compelled  to  dis-  *  67 
close  communications  made  during  marriage.^ 

Story,  in  his  Conflict  of  Laws,*  after  an  extended  discussion 

So  as  to  communications  not  confidential  but  evidently  designed  to  he  made 
public.     Crook  v.  Henry,  25  Wis.  569. 

1  1  Greenl.  Evid.  §  341  ;  Ex  parte  Jones,  1  P.  Wms.  GIO ;  and  cf.  Stat.  G  Geo. 
4,  c.  16,  §  37. 

-  1  Burr.  424,  per  Lord  Mansfield  ;  12  Vin.  Abr.  Evidence  B.  And  see  note 
to  1  Greenl.  Evid.  §  341,  with  authorities  cited.  But  see  Robison  v.  Robison,  44 
Ala.  227.  In  Pennsylvania,  a  wife  under  statute  may  be  a  competent  witness 
with  reference  to  her  separate  property  sold  by  her  husband.  Musser  v.  Gard- 
ner, 66  Penn.  St.  242. 

3  See  Ed.  note  to  10th  ed.  2  Kent  Com.  181  ;  Stapleton  v.  Croft,  10  E.  L.  & 
Eq.  455  ;  Barbat  v.  Allen,  ib.  596  ;  Alcock  v.  Alcock,  12  ib.  354.  And  see  State 
V.  Wilson,  30  N.  J.  77  ;  Farrell  v.  Ledwell,  21  AVis.  182  ;  Metier  v.  ISIetler,  3  C.  E. 
Green,  270.  Some  of  tiie  later  American  cases  turning  largely  upon  the  con- 
struction of  statutes  arc  Parsons  v.  People,  21  Mich.  509 ;  State  i'.  Straw,  50 
N.  H.  4G0;  Stanleys.  Stanton,  36  Ind.  445;  Noble  v.  Withers,  36  Ind.  193; 
Craig  V.  Brendel,  69  Penn.  St.  153  ;  JS^ewIiouse  r.  Miller,  35  Ind.  4G3  ;  Minier  v. 
Minier,  4  Lans.  421 ;  State  v.  Brown,  67  N.  C.  470.  In  an  action  against  both 
for  tlie  wife's  slanderous  words,  tlie  wife  is  competent  in  her  own  bclialf,  and  the 
husband  for  himself.  Mousler  v.  Harding,  33  Ind.  176.  Notwithstanding  our 
statutes,  a  prisoner's  wife  is  not  a  competent  witness  for  him  upon  tlie  trial  of 
an  indictment.  People  v.  Reagle,  60  Barb.  527  ;  Steen  v.  State,  20  Oliio  St. 
333.  Husband  permitted  to  testify,  when  a  substantial  party  to  tlie  suit,  though 
claiming  in  right  of  his  wife.  Fugate  v.  Pierce,  49  Mis.  441.  As  to  tlie  compe- 
tency of  a  wife  now  to  testify,  if  agent  for  an  absent  husband,  see  Magness  r. 
Walker,  26  Ark.  470  ;  Morony  v.  O'Laughlin,  102  Mass.  184.  As  to  competency 
in  case  of  tort,  see  Bunker  v.  Bennett,  103  Mass.  516.  Wife  of  an  heir  held 
incompetent,  notwitlistaiuling  statute,  in  a  suit  contesting  the  validity  of  a  will. 
Carpenter  v.  Moore,  43  Vt.  392.  Wife  not  protected  under  statute  from  making 
discovery,  though  it  be  against  herself.  Metier  v.  Metier,  3  C.  E.  Green,  270. 
*  §§  125-183. 

[67] 


*  67  HUSBAND   AND  WIFE. 

of  the  great  diversity  of  laws  existing  in  different  countries, 
as  to  the  incidents  of  marriage,  lays  down  the  followuig  gen- 
eral rules,  which  are  of  general  application.  First.  Where 
parties  are  married  in  a  foreign  country,  and  there  is  an  ex- 
press contract  respecting  their  rights  and  property,  present 
and  future,  it  will  be  held  equally  valid  everywhere,  unless 
under  the  circumstances  it  stands  prohibited  by  the  laws  of 
the  countr}^  where  it  is  sought  to  be  enforced.  It  will  act 
directly  on  movable  property  everywhere.  But  as  to  immov- 
able property  in  a  foreign  territory,  it  will,  at  most,  confer 
only  a  right  of  action,  to  be  enforced  according  to  the  juris- 
diction rei  Slice.  Second.  Where  such  an  express  contract 
applies  in  terms  or  intent  only  to  present  property,  and  there 
is  a  change  of  domicile,  the  law  of  the  actual  domicile  will 
govern  the  rights  of  the  parties  as  to  all  future  acquisitions. 
Third.  Where  there  is  no  express  contract,  the  law  of  the 
matrimonial  domicile  will  govern  as  to  all  the  rights  of  the 
parties  to  their  j)resent  property  in  that  place,  and  as  to  all 
personal  property  everywhere,  upon  the  principle  that  mova- 
bles have  no  situs,  or,  rather,  that  they  accompany  the  person 
everywhere.  As  to  immovable  property,  the  law  rei  sitce  will 
prevail.  Fourth.  Where  there  is  no  change  of  domicile,  the 
same  rule  will  apply  to  future  acquisitions  as  to  present  prop- 
erty. Fifth.  But  where  there  is  a  change  of  domicile,  the 
law  of  the  actual  domicile,  and  not  of  the  matrimonial  domi- 
cile, will  govern  as  to  all  future  acquisitions  of  movable  prop- 
erty ;  and,  as  to  all  immovable  property,  the  law  rei  sitce.^  He 
further  adds,  that  although  in  a  general  sense  the  law  of 

*  68    the  matrimonial  domicile  is  to  govern  in  relation  *  to  the 

incidents  and  effects  of  marriage,  yet  this  doctrine  must 
be  received  with  many  qualifications  and  exceptions,  inasmuch 
as  no  nation  will  recognize  such  incidents  and  effects  when 
incompatible  with  its  OAvn  policy  or  injurious  to  its  own  inter- 
ests. So,  too,  perplexing  questions  will  sometimes  arise  in 
determining  upon  the  real  matrimonial  domicile  of  parties  who 
marry  in  transitu,  during  a  temporary  residence  abroad,  or  on 
a  journey  made  for  that  purpose  with  the  intention  of  return- 
ing. But  the  true  principle  in  such  cases  is  to  consider  as  the 
1  Story  Confl.  Laws,  §§  184-187. 

[68] 


THE   GENERAL  DISABILITIES   OF  .COVERTURE.         *  68 

real  matrimonial  domicile  the  place  where,  at  the  time  of  mar- 
riage, the  parties  intended  to  fix  their  abode,  and  not  the 
place  where  the  ceremony  was  in  fact  performed.^ 

1  Story  Confl.  Laws,§§  189-199,  and  cases  cited.  See  also  1  Burge  Col.  & 
For.  Laws,  244-639  ;  Wharton  Confl.  Laws,  §§  118-121, 166, 187-202.  In  absence 
of  proof  as  to  the  law  prevailing  in  Russia,  parties  litigating  in  New  York  were 
held  to  be  governed  by  the  New  York  law,  in  Savage  v.  O'Neil,  44  N.  Y.  298. 
See  further  Schurman  v.  Marley,  29  Ind.  458  ;  Dow  v.  Gould,  &c.,  Co.,  31  Cal. 
629 ;  Mason  v.  Homer,  105  Mass.  116  ;  Craycroff  v.  Moreliead,  67  N.  C.  422 ; 
Bank  of  Louisiana  v.  Williams,  46  Miss.  618  ;  Mason  v.  Fuller,  36  Conn.  160. 


[69] 


*  69  HUSBAND  AND  WIFE. 


*69  *  CHAPTER   III. 

THE  EFFECT  OF  COVERTURE  UPON  THE  WIFE's  DEBTS  AND 
CONTRACTS. 

One  of  the  immediate  effects  of  marriage  at  the  common 
law  is  that  the  husband  at  once  becomes  bound  to  pay  all  out- 
standing debts  of  his  wife,  —  her  debts  dum  sola,  as  they  are 
called,  —  of  whatever  amount.  This  is  a  sort  of  recompense 
he  makes  for  taking  her  property  into  his  hands.  But  whether 
she  brings  him  a  fortune  or  not,  his  liability  is  not  affected. 
She  may  owe  large  sums  at  the  time  of  marriage  and  have 
nothing  to  offset  them.  She  may  have  studiously  concealed 
the  existence  of  the  debts  from  her  affianced  husband.  But 
none  of  these  considerations  can  avail  to  shield  him.  When 
married,  she  is  married  with  her  debts  as  well  as  her  fortunes. 
As  Blackstone  observes,  her  husband  must  be  considered  to 
have  "  adopted  her  and  her  circumstances  together."  ^ 

This  rule  is  moreover  applied  without  discrimination  as  to 
individuals.  An  infant  who  marries  is  bound  equally  with  an 
adult  husband, 2  A  second  husband  is  liable  for  the  debts  of 
his  wife  outstanding  at  the  close  of  her  widowhood,  whether 
contracted  prior  to  the  first  marriage,  or  while  living  separate 
from  her  first  husband  and  upon  a  separate  maintenance,  or 
after  the  termination  of  her  first  coverture  and  subsequent  to 
the  second.^ 

On  the  other  hand,  the  husband  remains  liable  for  the  debts 

of  his  wife  dum  sola  only  so  long  as  coverture  lasts.    As 
*  70    his  *  liability  originated  in  the  marriage  so  it  ceases  with 

it.     Hence  if  the  obligation  be  not  enforced  in  the  life- 

1  1  Bl.  Com.  443 ;  3  Mod.  186 ;  2  Kent  Com.  143-146 ;  Macq.  Hus.  &  Wife, 
39^1  ;  Heard  v.  Stamford,  3  P.  Wms.  409 ;  cas.  temp.  Talb.  173. 

'^  Roach  V.  Quick,  9  Wend.  238  ;  Butler  v.  Breck,  7  Met.  164. 

3  1  T.  R.  5 ;  7  T.  R.  348 ;  Prescott  v.  Fisher,  22  111.  390 ;  Angel  v.  Felton, 
8  Johns.  149. 

[70] 


WIFE'S   DEBTS   AND   CONTRACTS.  *  10 

time  of  the  wife,  the  surviving  husband  retains  her  fortune 
(if  any)  in  his  hands  and  cannot  be  charged  further  with  her 
debts  either  at  law  or  in  equity.^  The  wife's  chases  in  action 
still  unreduced  to  possession  at  the  time  of  her  death  may 
however  be  reached  by  her  creditors  where  he  has  received 
them  as  her  administrator ;  though  only  to  the  actual  amount 
of  such  assets ;  so  that  this  would  afford  them  but  partial 
relief.^  Nor  can  the  husband's  estate  after  his  death  be 
made  liable  for  the  wife's  debts  contracted  while  sole.^ 

The  injustice  of  the  rule  in  certain  cases  is  obvious.  Sup- 
posing a  feme  sole  is  worth  fifty  thousand  dollars  and  owes  at 
the  time  of  her  marriage  five  thousand  dollars.  She  marries 
and  dies  before  her  creditors  have  had  time  to  sue  her  husband. 
Thereupon  the  husband  retains  for  himself  the  fifty  thousand 
dollars  and  the  creditors  are  without  a  remedy.  Such  was 
the  character  of  the  argument  pressed  upon  the  distinguished 
Lord  Talbot  more  than  a  century  ago,  in  the  case  of  Heard  v. 
Stamford^  But  his  reply  was  as  follows :  "  The  question  is, 
whether  the  husband,  as  such,  be  chargeable  for  a  debt  of  his 
wife's,  after  her  death,  in  a  court  of  equity  ?  As,  on  the  one 
hand,  the  husband  is  by  law  liable  to  all  his  wife's  debts  dur- 
ing the  coverture,  although  he  did  not  get  one  shilling  portion 
with  her,  and  although  her  debts  should  amount  to  any  sum 
whatever ;  so,  on  the  other  hand,  it  is  as  certain  that  if  the 
debt  be  not  recovered  during  the  coverture,  the  husband  is 
no  longer  chargeable  as  such,  let  the  fortune  he  received  be 
ever  so  great.  The  case  perhaps  may  be  hard,  but  the  law 
hath  made  it  so  ;  and  the  alteration  of  it  is  the  proper  work 
of  the  legislature  only." 

*  Lord  Macclesfield  still  later  encountered  a  different    *  71 
objection  to  the  common-law  rule,  arising  from  an  oppo- 
site state  of  facts.     This  he  endeavored  to  answer.     It  may 
be  hard,  he  observes,  that  the  husband  should  be  answerable 

1  2  Kent  Com.  144.  See  Cole  v.  Shurtloff,  41  Vt.  311,  to  tlie  cHect  that  not 
even  the  husband's  parol  promise  maile  during  coverture,  to  pay  these  debts, 
will  create  an  additional  liability  for  them  on  Ins  part. 

'^  Heard  v.  Stamford,  3  P.  Wms.  40'J  ;  cas.  temp.  Talb.  173  ;  Morrow  v. 
Whitesides,  10  B.  Monr.  411 ;  Day  v.  ISIessick,  1  Houston,  328. 

3  Woodman  v.  Chapman,  1  Camp.  189 ;  Curtton  v.  Moore,  2  Jones  Eq.  204. 

*  See  supra. 

[71] 


*  71  HUSBAND   AND   WIPE. 

for  the  wife's  debts,  when  he  receives  nothing  from  her  ;  but 
we  are  to  set  off  against  that  hardship  the  rule,  that  if  the 
husband  has  received  a  personal  estate  with  the  wife,  and 
happens  not  to  be  sued  during  the  coverture,  he  is  not  liable. 
He  runs  a  hazard  in  being  liable  to  the  debts,  much  beyond 
the  personal  estate  of  the  wife  ;  and  in  recompense  for  that 
hazard,  he  is  entitled  to  the  whole  of  her  personal  estate, 
though  far  exceeding  the  debts,  and  is  discharged  from  the 
debts  as  soon  as  the  coverture  ceases. ^  Constituting  a  right 
b}'  balancing  off  two  wrongs  may  seem  unsatisfactory  to  the 
modern  reader.  Still  the  court  decided  aright :  for  the  diffi- 
culty was  in  the  common  law  itself. 

If  the  wife  survives  her  husband,  she  becomes  liable  once 
more  on  her  debts  while  sole.  And  this  too,  though  the 
means  for  extinguishing  them  may  have  already  been  squan- 
dered by  her  husband  or  placed  beyond  her  reach.^  Here  is  a 
third  hardship.  Coverture,  therefore,  seems  to  operate  here 
as  a  temporary  disability  and  not  so  as  to  utterly  merge  the 
wife's  identity.  The  husljand  becomes  liable  by  marriage 
not  as  the  debtor  but  as  the  husband ;  the  remedy  being  sus- 
pended, or  rather  shifted,  during  coverture. 

The  Eng-lish  common-law  courts  hold  that  if  the  husband, 
during  coverture,  obtains  a  certificate  of  discharge  in  bank- 
ruptcy the  wife's  debts  dum  sola  are  wiped  out  as  well  as  his 
own.3  AVe  apprehend  the  equity  doctrine  to  be  that  though 
the  husband  be  discharged,  the  wife's  suspended  liability  yet 
remains  ;  and  this  has  been  announced  in  Xew  York.* 

*  72    And  *  in  Maine  the  wife's  creditors  dum  sola  maj^  have 

a  fraudulent  conveyance  of  her  property  set  aside  not- 
withstanding her  husband's  bankruptcy .°  The  national  bank- 
ruptcy system  recently  established  by  statute  will  affect 
materially  the  future  consideration  of  this  subject  in  our 
courts.^ 

1  Earl  of  Thomond  v.  Earl  of  Suffolk,  1  P.  Wms.  469,  cited  in  2  Kent  Com. 
144. 

2  Woodman  v.  Chapman,  1  Camp.  N.  P.  189,  per  Lord  Ellenborough. 

3  Miles  V.  "Williams,  1  P.  Wms.  249  ;  Lockwood  v.  Salter,  5  B.  &  Ad.  303. 
•»  Mallory  v.  Vanderheyden,  3  Barb.  Cli.  9 ;  s.  c.  1  Comst.  453. 

5  Hamlin  v.  Bridge,  24  Me.  14-5. 

6  See  Act  Congress  March  2,  18G7,  c.  176. 

[72] 


WIFE'S  DEBTS  AND   CONTRACTS.  *  72 

The  liability  of  the  husband  for  his  wife's  debts  Avhile  sole 
is  limited  strictly  to  legal  demands  ;  that  is,  to  such  as  she  was 
bound  to  pay  at  the  time  of  her  marriage.^  And  if  a  demand 
would  not  be  enforceable  against  her  remaining  sole,  neither 
is  it  enforceable  against  her  husband.  But  the  promise  or 
part-payment  of  the  wife  cannot  take  a  debt  out  of  the  stat- 
ute of  limitations  as  against  her  husband,  nor  can  the  promise 
or  part-pajunent  of  the  husljand  as  against  his  wife.  Nor 
can  their  admissions  charge  one  another.^  Their  rights  in  this 
respect  are  separately  regarded.  All  actions  for  the  wife's 
del)ts  while  sole  must  be  brought  against  husband  and  wife 
jointly,  and  not  against  either  separately ;  and  judgment 
obtained  by  disregarding  this  rule  will  be  reversed  on  error.^ 
The  object  is  to  retain  the  remed}-  in  hand  so  that  execution 
may  be  taken  out  against  the  proper  party  according  to  cir- 
cumstances ;  for,  if  the  husband  should  die  pending  the  suit, 
the  wife  on  her  survivorship  would  become  liable. 

If  judgment  be  recovered  against  a  fe^ne  sole  on  her  debt 
before  she  marries,  and  she  dies  before  execution  is  taken  out, 
having  married  in  the  mean  time,  her  husband  will  be  dis- 
charged from  liability.  But  if  judgment  be  recovered  against 
both  during  coverture,  and  the  wife  dies  before  execu- 
tion, the  *  husband  is  still  charged,  because  by  the  judg-  *  73 
ment  the  nature  of  the  debt  was  altered  and  it  became 
his  own  debt.^  So,  too,  when  judgment  was  obtained  before 
coverture  and  scire  facias  brought  upon  it  against  husband 
and  wife  afterwards.^  When  judgment  has  been  obtained 
for  a  debt  of  the  wife  while  sole,  and  she  afterwards  marries, 
execution  must  in  strictness  be  taken  out  against  her  alone, 

1  Cowley  V.  Robertson,  3  Camp.  4.38  ;  Caldwell  v.  Drake,  4  J.  J.  Marsh.  246. 

2  Ross  V.  Winners,  1  Halst.  360  ;  Sheppard  v.  Starke,  8  Munf .  29 ;  Brown  v. 
Lasselle,  G  Blackf.  147  ;  Moore  v.  Leseur,  18  Ala.  600 ;  Farrar  i'.  Bessey,  24  Vt. 
89.  But  see  Lord  Tenterden,  in  Humphreys  v.  Royce,  1  Mood.  &  Rob.  140,  as  to 
admissions  of  the  wife  allowable  in  evidence  after  her  death. 

■^  Robinson  v.  Hardy,  1  Keb.  281;  Drue  v.  Thorn,  Alleyn,  72;  Anficl  v.  Fel- 
ton,  8  Johns.  149 ;  7  T.  R.  848  ;  Gage  v.  Reed,  16  Jolms.  403  ;  Gray  v.  Thacker, 
4  Ala.  136  ;  Platner  v.  Patchin,  19  Wis.  838. 

<  2  Bright  Has.  &  Wife,  8 ;  Burton  v.  Burton,  5  Barring.  441 ;  O'Brien  v. 
Ram,  3  Mod.  180 ;  Sid.  337 ;  Treviband  v.  Lawrence,  2  Ld.  Raym.  10-50. 

5  O'Brien  v.  Ram,  supra.  Mr.  Bright  seems  to  have  stated  this  point  incor- 
rectly.    See  2  Bright  Hus.  &  Wife,  3. 

[73] 


*  73  HUSBAND   AND   WIFE. 

because  execution  must  always  follow  the  judgment.^     But 
if  the  creditor  desires  to  charge  a  person  who  was  not  a  party 
to  the  record,  as  the  hushand  in  this  instance,  scire  facias 
should  be  issued  so  as  to  make  him  a  party .^    This  rule  applies 
likewise  where  the  wife  marries  pending  the  suit.    The  death 
of  the  wife,  after  action  has  been  commenced  against  hus- 
band and  wife  and  before  judgment,  puts  an  end  to  the  suit.^ 
The  rule  as  laid  down  in  England  concerning  the  wife's 
personal  liability  on  her  debts  dimi  sola  is  that  coverture  does 
not  wholly  relieve  her  from  the  consequences  of  judgment  for 
the  time  being ;  for  that  both  may  be  taken  on  execution  ; 
and  when  the  wife  is  taken,  she  shall  not  be  discharged  unless 
it  appear  that  she  has  no  separate  property  out  of  which  the 
demand  can  be  satisfied.^     This  rule  does  not  seem  to  have 
been  recognized  with  such  strictness  in  this  country .'^     But 
where  the  wife  after  marriage  pays  a  portion  of  her  debt  con- 
tracted while    sole   from   funds   derived   from   her  separate 
property,  it  is  said  that  the  husband  will  be  bound  by  the  act, 

unless  he  disaffirms  it  within  a  reasonable  time.*^ 
*  74  *  On  general  principles,  the  husband  is  bound  for 
the  debt  of  his  infant  wife  Avhile  sole,  just  as  much  as 
though  she  were  an  adult,  though  only  to  the  same  extent  as 
she  would  have  been  bound.  Hence,  where  the  demand  is 
for  necessaries  furnished  her  while  an  infant,  the  husband, 
after  marriage,  becomes  bound  to  pay  it,  since  she  Avould 
have  been  liable  if  she  had  not  married.  And  the  infancy 
of  the  husband  himself  cannot  be  pleaded  against  this  obli- 
gation.'^ 

1  Doyley  v.  White,  Cro.  Jac.  323 ;  Bull.  Ch.  P.  23  ;  Benyon  v.  Jones,  15  M. 

6  W.  566;  and  see  Haines  v.  Corliss,  4  Mass.  659;  Commonwealth  v.  Phillips- 
burgh,  10  ib.  78;  Triggs  v.  Triggs,  2  M.  &  Ry.  126  n. 

2  2  Bright  Hus.  &  Wife,  3,  4 ;  Cooper  v.  Hunchin,  4  East,  521. 

3  Williams  v.  Kent,  15  Wend.  360.  For  the  proper  procedure  in  case  of  a 
mortgage  executed  by  the  wife  dum  sola,  and  foreclosed,  with  a  decree  ordering 
personal  judgment  for  a  deficiency,  see  Platner  i'.  Patchin,  19  Wis.  333. 

4  Tidd  Pract.  9th  ed.  1026  ;  Sparkes  v.  Bell,  8  B.  &  C.  1 ;  Newton  v.  Roe, 

7  Man.  &  Gr.  329 ;  Evans  v.  Chester,  2  M.  &  W.  847. 

5  Mallory  v.  Vanderheyden,  3  Barb.  Ch.  9;  s.  c.  1  Comst.  453. 

6  Hall  V.  Eaton,  12  Vt.  510. 

1  Cole  V.  Seeley,  25  Vt.  220;  Anderson  v.  Smith,  33  Md.  465.  See  Bonney 
V.  Reardin,  6  Bush,  34. 

[74] 


WIFE'S  DEBTS  AND   CONTRACTS.  *  7-4 

So  far  is  this  doctrine  carried  that  the  agreement  of  a  widow 
after  her  husband's  death,  to  pay  a  debt  which  she  had  con- 
tracted during  coverture,  and  which  consequently  was  not 
binding  upon  herself,  but  upon  her  husband,  has  been  treated 
as  void,  on  the  ground  that  the  promise  was  without  con- 
sideration and  only  morally  binding. ^  But  in  another  case 
it  was  held  a  sufficient  consideration  to  support  a  widow's 
promissory  note  that  it  had  been  given  by  her,  out  of  respect 
for  her  late  husband's  memory,  to  secure  a  debt  due  by  him.^ 

In  respect  to  her  disability  to  contract,  the  wife  may  be 
considered,  as  Mr.  Bingham  has  remarked,  worse  off  at  the 
common  law  than  infants  ;  for  the  contracts  of  an  infant  are 
for  the  most  part  voidable  only,  while  those  of  married  women 
are,  with  few  exceptions,  absolutely  void.     But  the  disabili- 
ties  incident    to   these    two    conditions   rest  upon   different 
grounds.     For  the  disabilities  attached  to  infancy  are   de- 
signed  as   a   protection   for   the   inexperienced  against   the 
fraudulent ;  ^yhile  those  incident  to  coverture  are  the  simple 
consequence  of  that  sole  or  paramount  authority  which  the 
law  vests  in  the  husband.^     Common  sense  teaches  that  mar- 
ried women  have  sufficient  discretion  to  act  for  themselves, 
and  stand  on  a  different  footing  from  young  children  ; 
this  the  English  law  fully  recognizes,  *  irrespective  of    *  75 
equity  rules,  by  empowering  all  women  to  contract  up 
to  the  very  moment  of  their  marriage  and  from  the  time 
when  coverture  ceases.     At  most  it  could  only  be  said  that  a 
woman,  while  living  in  the  married  state,  was  peculiarly  sub- 
ject to  influence  from  the  other  sex,  which  might  be  exerted 
to  her  disadvantage. 

Lord  Nottingham,  in  a  case  mentioned  in  the  old  reports, 
once  refused  to  absolve  a  husband,  after  his  wife's  death,  from 
payment  for  goods  which  she  had  purchased  while  single,  but 
never  paid  for,  there  being  proof  that  he  had  actually  received 

1  Meyer  v.  Hawworth,  8  Ad.  &  El.  4G7. 

2  Ridout  V.  Bristow,  1  Cr.  &  J.  231 ;  Tyr.  84.     See  also  Nelson  v.  Searle 
3  Jur.  290  (1839)  ;  AVaul  v.  Kirkman,  25  Miss.  609  ;  Brunner's  Appeal,  47  Penn. 
St.  67.     For  statutory  clian<,'es  as  affecting  the  wife's  antenuptial  debts  see  post ^ 
pp.  196,  215.     And  see  Smiley  v.  Smiley,  18  Ohio  St.  543. 

3  See  Bing.  Inf.  &  Gov.  181,  182,  Am.  ed. ;  2  Kent  Com.  loO. 

[75] 


*  75  HUSBAND  AND   WIFE. 

the  goods.  His  lordship  declared  with  warmth  tliat  he  would 
change  the  law  on  that  point.^  But  in  this  case  it  appears 
that  the  goods  did  not  actually  come  to  the  husband's  hands 
until  after  the  wife's  death.  And  the  authority  of  this  deci- 
sion has  since  been  greatly  impaired.^  In  equity  the  creditors 
of  the  first  husband  may,  where  his  wife  was  administratrix, 
follow  the  assets  in  the  hands  of  a  second  husband,  although 
the  wife  be  dead  ;  and  at  law  during  her  life.^ 

The  husband  may  make  in  his  own  right  such  contracts  as 
he  pleases,  as  well  during  coverture  as  before.  He  is  never 
presumed  to  act  under  the  wife's  influence.*  But  the  wife 
by  coverture  becomes  disqualified  and  legally  irresponsible  in 
this  respect,  except  in  the  single  instance  where  her  husband 
is  civiliter  mortuus^  as  we  have  already  stated.^  And  another 
exception  prevailed  in  certain  parts  of  England  by  local  cus- 
tom —  as  that  of  London  —  where  she  might  carry  on  a  trade, 
and  sue  and  be  sued  in  reference  thereto,  as  though  single.^ 
But  otherwise  her  incapacity  at  the  common  law  is  total. 
She  cannot  earn  money  for  herself.'''  She  cannot  sign  or  in- 
dorse a  promissory  note,  jointly  with  her  husband  or  alone,  so 
as  to  bind  herself  ;^  nor  execute  a  bond  ;  nor  purchase  on  her 
own  credit ;  nor  agree  to  keep  a  money  deposit  payable  on 
demand ;  nor  otherwise  make  a  valid  contract.^  She  is  per- 
mitted, as  we  shall  hereafter  see,  to  pass  her  real  estate  by 
joining  in  a  deed  with  her  husband  ;  but  when  she  does 

*  76    so  she  *  is  not  bound  by  her  covenants,  nor  was  her 

1  Cha.  Ca.  295.  2  cha.  Ca.  295  ;  1  Eq.  Cas.  Ahr.  60. 

3  Cha.  Ca.  80;  1  Vera.  309;  2  Vern.  61,  118;  1  Eq.  Cas.  Abr.  60,  61;  Cro. 
Car.  603  ;   1  Roll.  Abr.  35.     See  Magruder  v.  Darnall,  6  Gill,  269. 
*  City  Council  v.  Van  Roven,  2  McCord,  465. 

5  Supra,  p.  63. 

6  1  Selw.  N.  P.  298  ;  Bing.  Inf.  261,  262.     See  post,  ch.  13. 

7  Offley  V.  Clay,  2  Man.  &  Gr.  172. 

8  Mason  v.  Morgan,  2  Ad.  &E1.  30  ;  Snider  v.  Ridgeway,  49  111.  522  ;  O'Daily 
V.  Morris,  31  Ind.  Ill ;  Brown  v.  Orr,  29  Cal.  120 ;  Tracy  v.  Keith,  11  Allen, 
214. 

9  Avery  v.  Griffiths,  L.  R.  6  Eq.  606  ;  Goulding  v.  Davidson,  28  Barb.  438 ; 
Lee  V.  Lanahan,  58  Me.  478.  But  as  to  separate  estate,  see  post,  ch.  12.  Her 
judgment  bond  is  void.  Schlosser's  Appeal,  58  Penn.  St.  493.  But  as  to  rights 
of  property  acquired  by  a  married  woman  on  the  faith  of  a  promise  wliich  she 
voluntarily  performed,  see  Walker  v.  Coover,  65  Penn.  St.  430.  See  further 
Tobey  v.  Smith,  15  Gray,  535 ;  Whitworth  v.  Carter,  43  Miss.  61. 

[76] 


WIFE'S  DEBTS  AND   CONTRACTS.  *  76 

separate  conveyance  (except  by  some  matter  of  record)  of 
any  effect  whatsoever.^  In  all  these  cases  the  wife  is  under 
the  husband's  dominion,  and  unable  to  act  for  herself.^ 

But  although  the  wife,  as  such,  has  no  power  to  make  a 
contract,  she  is  allowed  at  the  common  law  to  bind  her  hus- 
band in  certain  cases  as  his  agent.  Her  authority  may  be 
general  or  special,  express  or  implied.  On  this  principle  rests 
the  liability  of  the  husband  in  contracts  made  by  his  wife  for 
necessaries.  Blackstone  says  that  the  power  of  the  wife  to 
act  as  attorney  for  her  husband  implies  no  separation  from, 
but  is  rather  a  representation  of,  her  lord.^  Whenever  the 
husband  expressly  empowers  his  wife  to  make  a  contract  for 
him,  he  will  be  bound  as  in  the  case  of  any  other  principal. 
And  lie  may  bind  himself  in  like  manner  for  any  unauthorized 
contract  proceeding  from  his  wife  as  agent,  by  sul^sequent 
conduct  on  his  part  amounting  to  ratification.  But  greater 
difficulty  arises  in  determining  his  liability  upon  contracts 
where  the  authority  is  not  express,  but  only  implied.  How 
far  does  the  law  go  i||  presuming  against '  the  husband,  and 
what  are  the  proper  limits  of  an  implied  authority  in  the  wife 
to  bind  him  by  her  contracts  ? 

It  is  a  clear  obligation  which  rests  upon  every  husband  to 
support  his  wife  ;  that  is,  to  supply  her  with  necessaries  suit- 
able to  her  situation  and  his  own  circumstances  and  condition 
in  life.  But  though  this  obligation  appears  to  rest  on  the 
foundation  of  natural  justice,  the  common  law  assigns,  as  the 
true  legal  reason,  that  she  may  not  become  a  burden  to 
the  community.  So  long  as  that  calamity  is  averted,  the  wife 
has    no   direct  claim   upon  her  husband  under  any  circum- 

1  2  Bl.  Com.  293,  351,  3G4,  and  n.  by  Chitty  and  others;  2  Kent  Com.  loO- 
154 ;  ib.  167,  168.  See  post,  ch.  6.  Rule  applied  to  a  land  patent  signed  by 
husband  and  wife.     Shartzer  v.  Love,  49  Cal.  93. 

'i  Marshall  v.  Rutton,  8  T.  R.545 ;  11  East,  301  ;  2  B.  &  P.  226  ;  3  B.  &  C.  291 ; 
Jackson  v.  Vanderheyden,  17  Johns.  167  ;  Benjamin  v.  Benjamin,  15  Conn.  347 ; 
Ayer  v.  Warren,  47  Me.  217  ;  Young  v.  Paul,  2  Stockt.  401 ;  Savage  v.  Davis, 
18  Wis.  008;  Williams  v.  Coward,  1  Grant  Cas.  21.  Aliler  as  to  separate 
estate. 

3  1  Bl.  Com.  442;  2  Man.  &  Gr.  172;  Mizen  v.  Peck,  3  M.  &  W.  481. 

[77] 


*  76  HUSBAND  AND  WIFE. 

*  77    stances  whatever;  for  even   *in  the  case  of  positive 

starvation  she  can  only  come*  upon  the  parish  for  relief; 
in  which  case  the  parish  authorities  will  insist  that  the  hus- 
band shall  provide  for  her  to  the  extent  of  sustaining  life.^ 
If  a  husband  fail  in  this  respect,  so  that  his  wife  becomes 
chargeable  to  any  parish,  the  statute  4  Geo.  IV.  c.  83, 
§  3,  says  that  "he  shall  be  deemed  an  idle  and  disorderly 
person,  and  shall  be  punishable  with  imprisonment  and  hard 
labor."  2 

And  this  obligation  extends  to  the  whole  family,  with  such 
modifications  as  will  be  more  properly  noticed  under  the  topic 
of  parent  and  child.  If  a  man  marry  a  widow  he  is  not  bound 
to  maintain  her  children ;  unless  he  holds  them  out  to  the 
world  as  part  of  his  own  family.^  But  by  the  statute  4  and  5 
Will.  IV.  c.  76,  §  57,  the  husband  is  required  to  maintain, -as 
part  of  his  family,  any  child  or  children,  till  the  age  of  sixteen, 
legitimate  or  illegitimate,  that  his  wife  may  have  at  the  time 
of  entering  into  the  contract. 

To  enforce  these  marital  obligations  the  law  takes  a  circui- 
tous course  ;  and  the  wife  may  secure  ^erself  and  the  family 
from  want  against  a  cruel  and  miserly  husband,  of  ample 
means  to  support  them,  by  pledging  his  credit  and  making 
such  purchases  as  are  needful,  on  the  strength  of  an  implied 
authority  for  that  purpose.  Here,  all  other  things  being  equal, 
it  is  presumed  that  she  was  her  husband's  agent ;  and  no  direct 
permission  need  be  shown.  Indeed,  wherever  the  facts  are 
clear  that  those  articles  were  actually  needed,  and  that  the 
husband  failed  to  supply  them,  this  presumption  is  carried 
so  far  as  to  control  even  the  express  orders  of  the  husband 
himself. 

The  wife's  necessaries  are  such  articles  as  the  law  deems 
essential  to  her  health  and  comfort ;  chiefly  food,  drink,  lodg- 
ing, fuel,  washing,  clothing,  and  medical  attendance.  They 
are  to  be  determined,  both  in  kind  and  amount,  by  the  means 

1  Rex  V.  Flintan,  1  B.  &  Ad.  227  ;  Reg.  v.  luliabitants  of  "Wendron,  7  Ad.  & 
El.  819. 

2  See  Macphers.  Inf.  42,  43. 

3  4  T.  R.  118;  Cooper  v.  Martin,  4  East,  76  ;  Stone  v.  Carr,  3  Esp.  N.  P.  1. 
See  Parent  and  Child,  infra. 

[78] 


WIFE'S   DEBTS  AND    CONTRACTS.  *  77 

and  social  position  of  the  married  pair,  and  ninst  there- 
fore vary  *  greatly  among  different  grades  and  at  differ-  *  78 
ent  stages  of  society.^  Thus  a  large  milliner's  hill  might 
not  be  deemed  necessaries  for  the  wife  of  a  lal)orer,  Avhile  a 
wealthy  merchant  would  he  bound  to  pay  it.  So  too  neces- 
saries to-day  are  not  what  they  were  fifty  years  ago.  Nor  is 
the  ordinary  test  to  be  found  in  the  real  situation  and  means 
of  the  married  parties;  for  this  a  tradesman  cannot  be  ex- 
pected to  investigate ;  but  in  their  apparent  situation,  the 
style  they  assume,  and  the  establishment  they  maintain  before 
the  world  ;  which  every  husband  is  supposed  to  regulate  with 
sufficient  prudence.^  The  decisions  in  the  books,  relating  to 
necessaries,  are  therefore  somewhat  confusing,  as  might  be 
expected ;  the  more  so  since  the  dividing  line  between  law 
and  fact,  in  such  cases,  is  not  marked  with  distinctness.  Some- 
times the  court  decides  whether  articles  are  necessary,  some- 
times a  jury.  The  ordinary  rule  is  that  the  court  shall  decide 
whether  certain  articles  are  to  be  classed  as  necessaries  ;  while 
the  jury  may  determine  the  question  of  amount,  and  apply 
this  classification  to  the  facts  ;  ^  but  this  rule,  though  seem- 
ingly precise,  is  found  difiSeult  in  its  practical  application. 

Among  the  cases  we  find  the  following  articles  classed  as 
necessaries  for  the  wife  :  Board  and  lodging.  Medicines,  medi- 
cal attendance,  and  reasonable  expenses  during  illness.*  Furni- 
ture of  a  house  for  a  wife  to  whom  the  court  had  decreed  ^380 
a  year  as  alimony.^  Silver  fringes  to  a  petticoat  and  side-sad- 
dle (value  £d4)  furnished  to  the  wife  of  a  sergeant-at-law.^ 
Legal  expenses  incurred  by  a  wife  wlio  had  been  deserted  by 
her  husband,  preliminary  and  incidental  to  a  suit  for 
*  restitution  of   her  conjugal  rights,  and  in  obtaining    *  79 

1  2  Bright  Hus.  &  Wife,  7,  8;  Ozard  v.  Darnford,  Sel.  N.  V.  260;  Dennys  v. 
Sargeant,  0  Car.  &  P.  419;  Berreblock  v.  Michael,  Cro.  Jac.  2.J7,  258 ;  n.  to 
2  Kent  Com.  10th  ed.  14G  ;  ib.  138,  139 ;  1  Bl.  Com.  442. 

'  Waithman  v.  Wakefield,  1  Camp.  120. 

3  Eenaiix  v.  Teakle,  20  E.  L.  &  Eq.  345 ;  1  Bars.  Contr.  241 ;  Hall  i'.  Weir, 
1  Allen,  2G1;  Parke  v.  Kleeber,  37  Penn.  St.  251;  Phillipson  i'.  Hayter,  L.  R. 
6  C.  P.  38. 

*  Harris  v.  Lee,  1  P.  Wras.  438 ;  Mayhcw  v.  Thayer,  8  Gray,  172 ;  Cothran 
V.  Lee,  24  Ala.  380. 

5  Hunt  V.  De  Blaquiere,  5  Bing.  5-50.  ^  Skin.  349. 

[79] 


*  79  HUSBAND   AND   WIFE. 

professional  advice  as  to  the  proper  method  of  dealing  with 
tradesmen  who  were  pressing  their  bills.^  A  horse  worth  145 
for  the  invalid  wife  of  a  miller  earning  $30  per  month,  in  order 
that  she  might  take  exercise  as  advised  by  a  physician ;  the 
question  of  suitableness  however  being  left  to  the  jury .2  The 
cost  of  divorce  proceedings,  included  fees  of  a  proctor,  where 
the  Avife  had  reasonable  ground  for  instituting  them,  but  not 
otherwise.3  A  set  of  false  teeth.*  Household  suppHes  rea- 
sonable and  proper  for  the  ordinary  use  of  a  family,  although 
the  wife  receives  the  earnings  of  two  daughters  living  with 
her.^     Perhaps  a  piano.'' 

But,  on  the  other  hand,  the  following  articles  have  been 
held  not  to  be  necessaries :  Articles  of  jewelry  for  the  wife  of 
a  special  plead er.^  A  deed  of  separation.^  The  expense  of  an 
indictment  by  the  wife  for  assault.^  Counsel  fees  in  a  suit  for 
divorce  or  to  enforce  a  marriage  settlement,  whether  the  wife 
be  plaintiff  or  defendant.i^  Money  lent  the  wife  for  the  pur- 
chase of  necessaries,  unless  at  the  husband's  request."  And 
on  the  same  principle  money  lent  for  the  purchase  of  a  pas- 
sage ticket  to  enable  the  wife  to  join  her  husband.^^     Medical 

1  Wilson  V.  Ford,  L.  R.  3  Ex.  63.  2  Cornelia  v.  Ellis,  11  111.  584. 

3  Brown  v.  Ackroyd,  34  E.  L.  &  Eq.  214.  *  Giiman  v.  Andrus,  28  Vt.  241. 

5  Hall  V.  Weir,  1  Allen,  261. 

6  Parke  v.  Kleeber,  37  Penn.  St.  251. 

I  Montague  v.  Benedict,  8  B.  &  C.  631. 

8  Ladd  V.  Lynn,  2  M.  &  W.  265. 

9  Grindell  v.  Godmond,  5  Ad.  &  El.  755.  Especially  if  the  grounds  for  insti- 
tuting criminal  proceedings  did  not  appear  reasonable.  Smith  v.  Davis,  45 
N.  H.  566. 

i»  Pearson  v.  Darrington,  32  Ala.  227 ;  Morrison  v.  Holt,  42  N.  H.  478 ; 
Thompson  v.  Thompson,  3  Head,  527;  Coffin  i;.  Dunham,  8  Gush.  404;  Shelton 
V.  Pendleton,  18  Conn.  417 ;  Johnson  v.  Williams,  3  Iowa,  97 ;  Williams  v.  Mon- 
roe, 18  B.  Monr.  514 ;  Ray  v.  Adden,  60  N.  H.  82.  Legal  expenses  and  fees  are 
sometimes  chargeable  against  a  husband,  in  cases  of  this  sort,  because  the  stat- 
ute says  so.  See  Thomas  v.  Thomas,  7  Bush,  665;  Warner  v.  Heiden,  28  Wi8. 
617. 

II  Walker  i'.  Simpson,  7  W.  &  S.  83 ;  Stone  v.  McNair,  7  Taunt.  482;  Ste- 
venson V.  Hardy,  8  Wils.  388.  But  in  equity,  the  person  lending  the  money 
stands  in  the  stead  of  tlie  tradesman,  and  is  allowed  to  recover  if  the  money  was 
used  for  necessaries.  Harris  r.  Lee,  1  P.  Wms.  482;  Walker  v.  Simpson,  7  W. 
&  S.  83;  Deare  v.  Soutten,  L.  R.  9  Eq.  151.  See  SchuUhofer  v.  Metzger,  7  Rob. 
(N.  y.)  576. 

"  Knox  V.  Bushell,  3  C.  B.  n.  8.  384. 

[80] 


WIFE'S   DEBTS   AND    CONTRACTS.  *  79 

attendance  rendered  without  the  husband's  assent,  by  a  quack 
doctor ;  ^  though  when  a  husband  disputes  a  bill  for 
medical  attendance  *  on  the  ground  of  malpractice,  or  *  80 
an  unnecessary  surgical  operation,  the  burden  is  on  him 
to  show  it."^  Articles  in  short  which  are  extravagant  and 
altogether  beyond  the  husband's  circumstances  and  degree 
in  life.^ 

In  the  leading  Enghsh  case  of  Montague  v.  Benedict^  the 
rule  as  to  the  husband's  liability  for  his  wife's  necessaries  was 
thus  laid  down  :  "  If  a  man  without  any  justifiable  cause  turn 
away  his  wife,  he  is  bound  by  any  contract  she  may  make  for 
necessaries  suitable  to  her  degree  and  estate.  If  the  husband 
and  wife  live  together,  and  the  husband  will  not  supply  her 
with  necessaries,  or  the  means  of  obtaining  them,  then,  al- 
though she  has  her  remedy  in  the  Ecclesiastical  Court,  yet  she 
is  still  at  liberty  to  pledge  the  credit  of  her  husband  for  what 
is  strictly  necessary  for  her  own  support.  But  whenever  the 
husband  and  wife  are  living  together,  and  he  provides  her 
with  necessaries,  the  husband  is  not  bound  by  contracts  of  the 
wife,  except  where  there  is  reasonable  evidence  to  show  that 
the  wife  has  made  the  contract  with  his  assent.  Cohabitation 
is  presumptive  evidence  of  the  assent  of  the  husband,  but  it 
may  be  rebutted  by  contrary  evidence  ;  and  when  such  assent 
is  proved  the  wife  is  the  agent  of  the  husband  duly  author- 
ized." ^  Hence  the  husband's  liability  for  necessaries  may 
arise  in  two  classes  of  cases :  first,  where  the  wife  lives  with 
him  :  second,  where  she  lives  separate  from  him.  And  where 
the  wife  lives  with  him,  the  husband's  assent  to  her  contract 
for  necessaries  is  inferred  from  circumstances  which  show 
authority  actually  conferred,  or  else  the  law  supplies  an  assent 
for  her  benefit  where  he  has  improperly  refused  or  neglected 
to  provide  for  her  wants.  Where  they  live  apart  separation  is 
either  voluntary  or  involuntary. 

1  Wood  V.  O'Kelly,  8  Cush.  406. 

2  M'Clallan  r.  Adams,  19  Pick.  333. 

3  Caney  v.  Patton,  2  Ashm.  140.  In  Phillipson  v.  Hayter,  L.  R.  6  C.  P.  38, 
goods,  such  as  a  gold  pencil-case,  cigar-case,  glove-box,  scent-bottle,  guitar, 
music,  and  purse,  to  the  value  of  £20,  were  held  not  to  be  necessaries  charge- 
able against  the  husband,  who  was  a  clerk  with  a  salary  of  .£400  a  year. 

4  3  B.  &  C.  631. 

6  [81] 


*80  HUSBAND   AND   WIFE. 

Let  us  consider  these  two  classes  of  cases  separately.  Here 
we  are  met  at  the  outset  by  the  broad  presumption  of 
*  81  assent  *  which  cohabitation  of  itself  furnishes.  ""The 
simple  circumstance  that  husband  and  wife  are  living 
together  is  held  sufficient,  when  nothing  to  the  contrary  inter- 
venes, to  raise  a  presumjDtion  that  the  wife  is  rightfully  mak- 
ing such  purchases  of  necessaries  as  she  may  deem  proper.^ 
Whoever  then  supplies  her  in  good  faith  need  inquire  no 
further,  but  may  send  his  bill  to  her  husband.  t^This  rule  is  a 
fair  one  ;  for  it  is  not  to  be  supposed  that  a  husband  will  go 
in  person  to  buy  every  little  article  of  dress  or  household  pro- 
vision which  may  be  needful  for  his  family.  As  Lord  Abinger 
observed,  a  wife  would  be  of  little  use  to  her  husband  in  theu' 
domestic  arrangements,  if  his  interference  was  always  to  be 
deemed  necessar3^2  Accordingly  if  an  action  be  brought 
against  the  husband  for  the  price  of  goods  furnished  under 
such  circumstances,  it  must  be  taken  prima  facie  that  these 
goods  were  supplied  by  his  authority,  and  he  must  show  that 
he  is  not  responsible.^ 

The  wife's  contract  for  necessaries  will  bind  the  husband  to 
a  still  greater  extent  if  the  evidence  warrant  the  inference 
that  a  more  extensive  authority  has  in  fact  been  given.^ 
Thus  the  presumption  which  cohabitation  furnishes  is  strength- 
ened by  proof  that  the  wife  has  been  permitted  by  the  hus- 
band to  purchase  other  articles  of  the  same  sort  for  the  use 
of  the  household.^  But  it  must  be  ordinarily  things  for  what 
may  be  termed  the  domestic  department,  to  which  the  wife's 
authority  to  bmd  her  husband  is  restricted.^ 

The  question  is,  after  all,  one  of  evidence  ;  it  turns  upon 

1  2  Bright  Hus.  &  Wife,  6,  7  ;  Bull.  N.  P.  134;  Langfort  v.  Tyler,  Salk.  113; 
Atkins  V.  Garwood,  7  Car.  &  P.  756.  See  also  Dyer  v.  P2ast,  1  Ventr.  42;  Beau- 
mont V.  Weldon,  2  Bent.  155;  Manby  v.  Scott,  1  Mod.  124;  1  Sid.  109;  1  Roll. 
Abr.  351,  pi.  5;  Freestone  v.  Butcher,  9  Car.  &  P.  643. 

2  Emmet  v.  Norton,  8  Car.  &  P.  506. 

3  Clifford  V.  Laton,  3  Car.  &  P.  16,  per  Lord  Tenterden. 

*  2  Bright  Hus.  &  Wife,  9 ;  cases  cited  in  n.  to  Filraer  v.  Lynn,  4  Nev.  & 
Man.  559;  M'George  v.  Egan,  7  Scott  Cases,  112. 

5  1  Sid.  128 ;  Jewsbury  v.  Newbold,  40  E.  L.  &  Eq.  518. 

6  Phillipson  v.  Hayter,  L.  R.  6  C.  P.  38.  If  the  tradesman  supplied  the  wife 
with  articles  which  were  not  necessaries  also,  he  can  yet  recover  for  such  arti- 
cles supplied  as  were  necessaries.    Eames  v.  Sweetser,  101  Mass.  78. 

[82] 


WIFE'S   DEBTS  AND  CONTRACTS.  *  81 

the  question  of  authority  from  the  husband ;  and  this  pre- 
sumption in  the  wife's   favor  may  be  rebutted  by  contrary 
testimony  on  the  husband's  behalf.^     Lord  Holt  says, 
"  His  assent  shall  *  be  presumed  to  all  necessary  con-    *  82 
tracts,  upon  the  account  of  cohabiting,  unless  the  con- 
trary appear y  ^ 

Not  only  is  the  husband  permitted  to  sliow  that  the  articles 
in  controversy  are  not  such  as  can  be  considered  necessaries, 
but  he  may  show  that  he  supplied  his  wife  himself  or  by  other 
agents,  or  that  he  gave  her  ready  money  to  make  the  pur- 
chases.^ This  is  on  the  principle  that  so  long  as  the  husband 
has  provided  necessaries  in  some  way  his  marital  obligation  is 
discharged,  whatever  may  be  the  method  he  chooses  to  adopt. 
And  in  the  class  of  cases  which  we  are  now  considering,  so 
long  as  the  husband  is  willing  to  provide  necessaries  at  his 
own  home  he  is  not  liable  to  provide  them  elsewhere.*  In 
general,  a  husband  who  supplies  his  wife  with  necessaries 
suitable  to  her  position  and  his  own  is  not  liable  to  others  for 
debts  contracted  by  her  without  liis  previous  authority  or 
subsequent  sanction.^  But  in  all  such  cases  the  burden  of 
proof  is  on  the  husband.^ 

This  last  rule  suggests  another  point  of  which  the  trades- 
man may  avail  himself,  as  against  the  husband,  on  the  general 
principles  of  agency ;  namely,  that  subsequent  ratification  is 
as  good  as  a  previous  authority.     So  then  if  it  can  be  shown 

1  Lane  v.  Ironmonger,  13  M.  &  W.  3G8. 

2  Etherington  v.  Parrott,  1  Salk.  118.  See  also  to  the  same  effect  Holt  v. 
Brien,  4  B.  &  Aid.  252  ;  McCutchen  v.  McGaliay,  11  Johns.  281 ;  and  n.  by  Am, 
editor  to  Bing.  Inf.  187.  The  position  assumed  by  Mr.  Story,  in  his  work  on 
Contracts,  that,  as  to  the  wife's  necessaries,  "  the  law  raises  an  uncontrollable  pre- 
sumption of  assent  on  the  part  of  the  husband,"  is  therefore  incorrect.  Story 
Contr.  2d  ed.  §  97.  "  What  the  law  does  infer  is,  that  the  wife  has  authority 
to  contract  for  things  that  are  really  ne(^essary  and  suitable  to  the  style  in  which 
the  husband  chooses  to  live,  in  so  far  as  the  articles  foil  fairly  within  the  domes- 
tic department  which  is  ordinarily  confided  to  the  management  of  the  wife." 
Willes,  J.,  in  Phillipson  v.  Hayter,  L.  K.  ti  C.  P.  38.  And  sec  Bovill,  C.  J.,  ib., 
to  the  same  effect. 

3  Manby  v.  Scott,  1  Sid.  109;  2  Smith's  Lead.  Cas.  (Cth  Am.  ed.)  4G9 ; 
Etherington  v.  Parrott,  2  Ld.  Raym.  1006. 

*  Morgan  v.  Hughes,  20  Tex.  141;  Jolly  v.  Rees,  15  C.  B.  n.  s.  628. 
8  Seaton  v.  Benedict,  5  Bing.  28. 
6  Tebbets  v.  Hapgood,  34  N.  H.  420. 

[83] 


*  82  HUSBAND  AKD   WIFE. 

that  the  husband  knew  his  wife  had  ordered  certain  necessaries, 
and  3'et  failed  to  rescind  the  purchase ;  or  if  there  be  proof 
that  he  knew  she  wore  the  articles  and  yet  expressed  no 
disapprobation ;  the  law  presumes  approval  of  her  contract 
and  binds  him.^     To  this  principle  perhaps  may  be  re- 

*  83    ferred  the  rule  which  *  Mr.  Roper  further  states  (with- 

out, however,  citing  any  authorities),  that  the  husband 
is  liable  whenever  the  goods  purchased  by  his  wife  come  to 
her  or  his  use  with  his  knowledge  and  permission,  or  when  he 
allows  her  to  retain  and  enjoy  them ;  in  other  words,  that  a 
legal  liability  becomes  fixed  from  the  fact  that  the  husband 
and  his  household  take  the  benefit  of  the  purchase.^  But  the 
mere  fact  that  a  husband  sees  his  wife  wearing  articles  pur- 
chased without  authority  will  not  charge  him  ;  the  question 
is  one  of  approval  or  disapproval,  assent  or  dissent.^ 

As  a  rule,  a  husband  who  furnishes  his  wife  and  family  with 
necessaries,  in  any  reasonable  manner,  has  the  right  to  pro- 
hibit particular  persons  from  trusting  or  dealing  with  her  on 
his  account.  Notice  to  this  effect,  properly  given,  will  be 
effectual  as  against  any  presumption  which  cohabitation  raises.* 
And  notice  given  to  a  ti-adesman's  servant  has  been  held  suffi- 
cient notice  to  the  master.  But  notice  given  in  the  news- 
papers not  to  trust  a  wife  is  held  to  be  of  no  effect  against 
such  as  have  not  had  actual  notice.^  Nor  is  a  successful 
defence  against  one  bill  sufficient  notice  of  prohibition  against 
subsequent  bills.^ 

In  all  cases  the  husband  will  be  discharged  from  liability 

1  Seaton  v.  Benedict,  5  Bing.  28  ;  2  Moo.  &  P.  74  ;  Parke,  B.,  in  Lane  v.  Iron- 
monger, 13  M.  &  W.  368;  Ogden  v.  Prentice,  33  Barb.  160. 

2  2  Rop.  Hus.  &  "Wife,  112;  2  Bright  Hus.  &  Wife,  9.  Mr.  Macqueen  (Hus. 
&  Wife,  n.  to  p.  132)  points  out  this  statement  of  Mr.  Roper  with  a  doubt  as  to 
the  autliority,  although  he  admits  tlie  justice  of  such  a  rule,  on  the  civil-law 
maxim,  that  "  no  one  should  enrich  himself  at  another's  loss."  See  Woodward 
V.  Barnes,  43  Vt.  330. 

3  Atkins  V.  Curwood,  7  Car.  &  P.  756. 

i  McCutchen  v.  McGahay,  11  Johns.  281 ;  Keller  v.  Phillips,  £9  N.  Y.  351. 
According  to  Jolly  v.  Rees,  15  C.  B.  n.  s.  628,  the  majority  of  the  court  appear 
to  have  considered  a  private  arrangement  with  the  wife  sufficient,  without  notice 
to  the  tradesman. 

6  Walker  v.  Laighton,  11  Post.  (N.  H.)  111. 

6  Ogden  V.  Prentice,  33  Barb.  160, 

[84] 


WIFE'S   DEBTS  AND   CONTRACTS.  *  83 

■u'liere  it  appears  that  the  goods  were  not  supplied  on  his 
credit,  but  that  the  party  furnishing  them  trusted  the  wife 
individually.^  She  might  have  separate  property,  indepen- 
dently of  her  husl^and,  to  which  the  tradesman  looked  for 
payment,  or  a  special  allowance  of  sufficient  amount  might 
have  been  made  her  by  her  husband.^  Thus,  where  the 
husband  during  a  temporary  *  absence  made  an  allow-  *  84 
ance  to  his  wife,  he  was  held  not  to  be  lial)le  for  nec- 
essaries supplied  to  her,  the  tradesman  having  trusted  to 
payment  from  her  allowance.'^  So  if  credit  be  given  to  a  third 
party,  the  husband  is  not  liable.*  And  of  coui-se,  if  the 
tradesman  has  agreed  not  to  charge  him,  there  is  no  liability 
incurred  l)y  the  husband.^  Though  the  wife  be  without  prop- 
erty, the  rule  is  the  same ;  and  it  would  appear  that  the 
husband  may  give  permission  to  trust  his  wife  on  her  separate 
credit  without  incurring  liability.^ 

That  the  wife  has  a  separate  income,  that  the  invoices  are 
made  out  to  her,  that  the  plaintiff  has  drawn  bills  of  exchange 
upon  her  for  part-payment  of  the  amount  due,  and  that  she 
has  accepted  such  bills  in  her  own  name,  payable  at  her  own 
banker's  from  her  separate  funds,  —  all  these  are  circum- 
stances which  go  to  repel  the  presumption  of  agency  and  show 
that  the  wife  was  purchasing  on  her  own  credit  with  the  trades- 
man's assent.*"  So  is  the  studious  concealment  of  the  pur- 
chases from  the  husband's  knowledge,  by  the  tradesman  and 
the  wife,  and  the  attempt  of  the  latter  to  secure  the  debt  by 
her  own  promissory  note.^  All  these  are  facts  for  the  jury.^ 
The  husband  is  not  relieved  by  the  single  circumstance  that 

»  Metcalfe  v.  Shaw,  3  Camp.  22;  Bentley  v.  Griffin,  5  Taunt.  3-56  ;  Pearson  v. 
Darrington,  32  Ala.  227;  Stammers  v.  Macomb,  2  Wend.  454;  Moses  v.  For- 
gartie,  2  Hill  (S.  C),  835;  Carter  v.  Howard,  39  Vt.  106. 

2  Levett  V.  Penrice,  24  Miss.  416;  Simmons  v.  McElwain,  26  Barb.  420; 
McMahon  v.  Lewis,  4  Bush,  138;  Weisker  v.  Lowentjial,  31  Md.  413. 

3  Holt  t'.  Brien,  4  B.  &  Aid.  252;  Montague  v.  Benedict,  3  B.  &  C.  631; 
Harsliaw  v.  Merryman,  18  Miss.  106 ;  Uenaux  v.  Teakle,  20  E.  L.  &  Eq.  345. 

*  Harvey  v.  Norton,  4  Jur.  42. 

5  Dixon  V.  Hurrell,  8  Car.  &  P.  717. 

6  Taylor  v.  Slielton,  30  Conn.  122. 

"  Freestone  v.  Butcher,  9  Car.  &  P.  643 ;  Macq.  Hus.  &  Wife,  135. 

8  Mitchell  V.  Treanor,  11  Geo.  324.     But  see  Day  v.  Burnham,  36  Vt.  37. 

9  Attorney-General  v.  Riddle,  2  Cr.  &  Jer.  493;  2  Tyr.  523;  Barnes  r.  Jar- 
rett,  2  Jur.  988. 

[85] 


*  84  HUSBAND   AND   WIFE. 

the  goods  were  charged  on  the  shop  books  to  the  wife  ;  since 

prima  facie  the  actual  credit  is  always  supposed  to  be  given 

to  the  husband.!     His  dissent  to  his  wife's  purchase  of  neces- 

^        saries  should  be  expressed  in  an  effectual  and  suitable  manner. 

Mere  objection  on  his  part  is  insufficient.     Thus  a  bill 

*  85    for  medical  attendance  *  must  be  paid  by  him,  even 

though  he  objected  to  the  visits,  as  long  as  he  was 
present  and  gave  no  notice  to  the  physician  that  the  latter 
must  look  elsewhere  for  payment.^^  And  private  arrangements 
between  husband  and  wife  as  to  the  method  of  payment 
cannot  affect  the  rights  of  third  parties.^  If  he  means,  when 
sued  in  assumpsit  for  necessaries,  to  defend  the  action  as  to 
part  only,  it  would  appear  that  his  proper  plea  will  be  tliat  he 
is  not  liable  beyond  a  certain  amount,  and  he  should  pay  that 
amount  into  court.*  But  if  he  means  to  dispute  the  charge 
altogether,  common  honesty  dictates  that  the  articles  unwar- 
rantably purchased  should  be  restored  without  delay .^  He 
may  introduce  evidence  at  the  trial  to  show  that  the  com- 
modities in  question  were  not  necessaries,  inasmuch  as  the 
wife  had  incurred  other  similar  debts  with  other  parties.^  In 
a  word,  the  question  is  (in  the  absence  of  such  evidence  of 
necessity  as  may  show  an  agency  in  law)  whether  there  was 
an  agency  and  authority  in  fact.'^ 

Wherever  the  husband  neglects  to  supply  his  wife  with 
necessaries,  she  may  obtain  them,  although  it  be  against  his 
wishes,  on  the  pledge  of  his  credit.  And  the  person  furnish- 
ing the  articles  may  sue  the  husband  notwithstanding  he  has 
been  expressly  forbidden  to  trust  her.^  But  here  the  law 
raises  a  presumption  of  agency  only  for  the  purpose  of  enforc- 

1  Jewsbury  v.  Newbold,  40  E.  L.  &  Eq.  518;  Godfrey  v.  Brooks,  5  Harring. 
896  ;  Furlong  v.  Hysom,  35  Me.  332. 
'i  Cothran  v.  Lee,  24  Ala.  380.  _ 

3  lb. ;  Johnston  v.  Sumner,  3  Hurl.  &  Nor.  2C1.  But  see  Jolly  v.  Rees,  cited 
supra. 

4  Emmet  v.  Norton,  8  Car.  &  P.  506. 

5  Macq.  Hus.  &  Wife,  136;  Oilman  v.  Andrus,  28  Vt.  241.  See  Tuttle  v. 
Holland,  43  Vt.  542. 

6  Renaux  v.  Teakle,  20  E.  L.  &  Eq.  345. 
T  Read  v.  Teakle,  24  E.  L.  &  Eq.  332. 

8  Keller  v.  Phillips,  39  N.  Y.  351 ;  Cromwell  v.  Benjamin,  41  Barb.  558 ; 
Woodward  v.  Barnes,  43  Vt.  330. 

[86] 


WIFE'S   DEBTS  AND   CONTRACTS.  *  85 

ing  a  marital  obligation.  And  the  tradesman  or  other  party- 
furnishing  supplies  in  this  case  is  bound  to  show  affirmatively 
and  clearly  that  the  husband  did  not  provide  necessaries  for 
his  wife  suitable  to  her  condition  in  life.^  It  is  held  in  Massa- 
chusetts, that  a  town  may  supply  a  wife  who  is  in  need  of 
relief,  throuGfh  the  necjlect  of  her  husband,  and  then 
sue  him  for  *  necessaries  suitable  to  the  condition  of  a  *  86 
pauper,  and  no  more.^  In  New  York,  if  the  husband 
be  of  sufficient  abiUty  to  support  his  wife,  it  would  appear 
that  she  cannot  be  supported  by  the  public  as  a  pauper  at  all.^ 
And  so  in  Indiana.^ 

Marriage  de  facto  is  always  sufficient  to  charge  the  husband 
with  his  Avife's  necessaries.  There  seem  to  be  two  reasons 
why  this  should  be  so :  one,  that  a  tradesman  cannot  be 
expected  to  inquire  into  such  matters ;  the  other,  that  it  is 
just  that  any  man  who  holds  out  a  woman  to  society  as  his 
Avife  should  maintain  her  as  such.  Hence  an  agency  is  to  be 
inferred  wherever  there  is  cohabitation  of  parties  as  husband 
and  wife ;  though  not,  it  would  appear,  where  the  cohabita- 
tion is  irregular  and  calculated  to  raise  a  different  impression. 
Lord  Kenyon  used  very  strong  language  to  this  effect  in 
Watson  V.  Threlkeld,  where  it  appeared  that  the  tradesman 
knew  that  there  had  been  no  marriage  :  "  It  is  certain  that  if 
a  man  has  permitted  a  woman  to  whom  he  was  not  married 
to  use  his  name  and  pass  for  his  wife,  and  in  that  character 
to  contract  debts,  he  is  liable  for  her  debts  ;  and  I  am  of 
opinion  that  he  is  liable  whether  the  tradesman  who  furnished 
the  goods  knew  the  circumstances  to  be  so  or  not.  He  gives 
her  a  credit  from  his  name  and  cohabitation  ;  and  it  is  not  to 
be  supposed  that  the  tradesman  could  look  to  the  credit  of  a 
woman  of  that  description  and  not  to  that  of  the  man  by 
whom  she  was  supported."^  The  dictum  of  Lord  Ellen- 
borough  in  Robinson  v.  JVahon  would  seem  to  narrow  this 
rule  so  as  to  exclude  tradesmen  having  actual  knowledge  of 

1  Keller  v.  Phillips,   39  N.   Y.  351 ;  Cromwell  v.  Bonjaniin,  41  Barb.  558  ; 
Woodward  v.  Barnes,  43  Vt.  330. 

2  Monson  v.  Williams,  6  Gray,  416.    And  see  Rumney  v.  Keyes,  7  N.  H.  571. 

3  Norton  v.  Rhodes,  18  Barb.  100. 

*  Commissioners  v.  Hildebrand,  1  Carter,  555. 
5  2  Esn.  637.     And  see  1  Greenl.  Evid.  §  207. 

[87] 


*  86  HUSBAND   AND  WIFE. 

the  illicit  relation  of  the  parties.^     And  the  death  of  the  quasi 
husband  is  held  to  revoke  his  authoritj''  altogether,  so 

*  87    that  a  subsequent  *  contract  is  void  against  his  estate, 

under  all  circumstances.^ 

An  adult  husband  is  bound  on  the  contracts  of  his  minor 
wife  for  necessaries.^  And  a  minor  husband  is  liable  for 
necessaries  furnished  his  wife,  whether  she  be  minor  or 
adult.^  The  ordinary  rules  of  husband  and  wife  therefore 
apply  so  far  as  family  necessaries  are  concerned.  If  old 
enough  to  contract  marriage,  an  infant  is  presumed  old 
enough  to  pay  for  his  wife's  board  and  lodging  as  well  as  his 
own.  And  such  claims  may  be  enforced  against  his  estate 
though  he  die  under  age.^  But  with  regard  to  his  wife's 
general  contracts  it  would  seem  that  infancy,  which  incapaci- 
tates him  from  making  contracts  in  person,  also  disqualifies 
him  from  emploj'ing  an  attorney. 

The  common-law  courts  include  articles  of  the  peace  under 
the  head  of  necessaries,  though  by  stretching  very  consider- 
ably the  doctrine  of  agency.  Since  this  proceeding  generally 
assumes  the  husband  and  wife  to  be  living  together,  we  may 
here  allude  to  the  doctrine.  A  husband  is  at  common  law 
held  liable  to  an  attorney  who  acts  for  his  wife  in  exhibiting 
such  articles  against  him.  But  the  proceeding  must  have 
been  justified  by  the  circumstances.  This  is  the  English 
rule ;  ^  followed  likewise  in  New  Hampshire.'''  Even  if  the 
husband  and  wife  dwelt  apart  the  English  courts  will  not 
inquire  whether  she  might  not  have  paid  her  counsel  fees 
and  costs  from  her  maintenance ;  for,  as  Lord  Denman  ob- 
serves, "she  has  her  maintenance  for  other  purposes."  ^     But 

1  1  Camp.  245.  But  reference  to  the  case  shows  that  this  doubt  is  sug- 
gested more  strongly  in  the  reporter's  liead-note  than  in  his  lordship's  opinion. 
See  Jewsbury  v.  Newbold,  40  E.  L.  &  Eq.  518;  Munroe  v.  De  Chemant,  4  Camp. 
215. 

2  Blades  v.  Free,  9  B.  &  C.  167 ;  Stinson  v.  Prescott,  15  Gray,  335.  But 
see  Ginochio  v.  Porcella,  3  Bradf.  Sur.  277.     See  reference  to  ib.,  infra,  p.  180. 

3  Nicholson  v.  Wilborn,  13  Geo.  467. 

*  Cantine  v.  Phillips,  5  Harring.  428.    And  see  Bush  v.  Lindsey,  14  Geo.  687. 

5  Ibid. 

6  Sheplierd  i-.  Mackoul,  3  Camp.  326 ;  Macq.  IIus.  &  Wife,  136,  137. 
"  Morris  v.  Palmer,  39  N.  H.  123. 

8  Turner  v.  Eookes,  10  Ad.  &  El.  47. 

[88] 


WIFE'S  DEBTS  AND   CONTRACTS.  *  87 

the  wife  cannot  cany  her  privilege  so  far  as  to  indict  her 
husband ;  and  here  the  Englissh  courts  seem  to  liave  stopped 
short  in  their  perplexity,  and  placed  a  final  limit  to  this 
fiction  of  agency.  "  It  cannot  be  maintained,"  says 
*  Patteson,  J.,  in  G-rindell  v.  G-odmond,  "  that  an  in-  *  88 
dictment  against  the  husband  for  assaulting  his  wife  is 
a  necessary."  ^ 

The  law  will  not  imply  a  contract  as  against  a  son-in-law, 
to  pay  his  wife's  board  while  staying  at  her  father's  house. 
"  Persons  in  such  a  near  connection  as  father  and  children  do 
not  usually  live  together  upon  a  footing  of  obligation  to  ac- 
count with  and  pay  for  attentions  and  services,  or  board  and 
lodging.  When  the  parties  intend  to  live  in  that  way,  it  is 
but  reasonable  to  require  that  there  should  be  an  express 
understanding  between  them  to  that  effect."  ^  And  this 
principle  is  extended  to  the  husband's  own  board ;  the  law 
implying  no  contract  by  which  the  relation  of  debtor  and 
creditor  arises  between  father-in-law  and  son-in-law,  either 
for  support  on  the  one  hand  or  services  on  the  other.^ 

Some  of  the  old  books  raise  a  curious  distinction :  namely, 
that  if  the  wife  takes  up  goods,  as  silk,  and  before  they  are 
made  into  clothes,  pawns  them,  the  husband  shall  not  pay  for 
them  ;  Init  that  it  is  otherwise  if  they  are  made  up  and  worn, 
and  then  pawned  ;  for  in  the  former  case  they  never  came  to 
the  husband's  use,  while  in  the  latter  they  did.'^  '  We  appre- 
hend that  the  real  question  in  such  cases  would  be  whether 
the  articles  were  or  were  not  in  fact  necessaries  ;  while  at  the 
same  time  purchases  of  cloth  in  quantities,  it  might  be  ad- 
mitted, are  not  so  clearly  necessaries  as  clothing  made  up  for 
wear  and  worn.  The  practical  application  of  this  rule  is  in 
cases  where  the  wife  (being,  as  we  have  said,  forbidden  to 
borrow  money  for  the  purchase,  real  or  ostensible,  of  neces- 
saries) undertakes  to  raise  funds  for  her  own  purposes  by 
purchasing  goods  and  then  selling  or  pawning  them.  We  do 
not  find  a  modern  decision  on  this  point. 

1  5  Ad.  &  El.  755.     See  supra,  p.  79. 
■■2  Ter  Court,  in  Cantine  i'.  Phillips,  5  Harring.  428. 
3  Sprague  v.  Waldo,  38  Vt.  139.     See  Parent  and  Child,  infra. 
*  Holt,  C.  J.,  in  Etherington  v.  Parrott,  1  Salk.  118.     See  also  Reeve  Dom. 
Rel.  84. 

[89] 


*  88  HUSBAND  AND  WIFE. 

In  the  second  class  of  cases  which  we  are  to  consider, 

*  89    the  *  husband's  liability  for  his  wife's  necessaries  arises 

where  they  are  living  apart.  The  rule  is  that  where 
the  husband  abandons  his  wife,  turns  her  away  without  rea- 
sonable cause,  or  compels  her  by  ill  usage  to  leave  hira,  he  is 
liable  for  her  necessaries,  and  sends  credit  with  her  to  that 
extent.^  The  wife's  faithfulness  on  the  one  hand  to  her  mar- 
riage obligations ;  on  the  other,  the  husband's  disregard  of 
his  own ;  these  aiford  the  reason  of  the  above  rule  and  suggest 
its  proper  limitation.  The  wife  in  such  cases  has  an  author- 
ity ;  but  what  may  be  called  an  authority  of  necessity .^  The 
law  by  a  fiction  infers  an  agency  without  asking  evidence 
which  should  show  authority  in  fact. 

This  rule  suggests,  then,  three  cases  where  the  wife  may 
pledge  her  husband's  credit  when  they  are  living  apart :  the 
first,  where  he  abandons  her  ;  the  second,  where  he  turns  her 
out  of  doors  without  reasonable  cause  ;  the  third,  where  his 
misconduct  compels  her  to  leave  him.  In  the  first  two  cases 
his  own  acts  impose  the  necessity,  and  her  conduct  is  in- 
voluntary. But  in  the  third  her  conduct  might  be  considered 
voluntary,  though  induced  by  his  misconduct ;  and  the  rule 
here  becomes  perplexing.  The  doctrine  of  Honvood  v.  Seff'er, 
an  old  case,  is  that  the  wife  is  not  justified  in  leaving  her  hus- 
band unless  she  has  been  driven  from  the  house  by  actual 
violence  or  apprehension  for  her  personal  safety  ;  and  in  this 
case  the  husband  was  held  not  to  be  liable,  since  she  had 
quitted  his  house  because  he  had  placed  a  profligate  woman 
at  the  head  of  the  table.^  This  doctrine  has  been  strongly 
condemned  in  later  times,  and  the  modern  cases  justly  regard 
such  studied  insults  as  capable  of  legal  redress.  If,  therefore, 
the  husband,  by  his  indecent  conduct,  renders  his  house 
*  90  unfit  for  a  modest  *  woman  to  share  it,  the  rule  now  is 
that  she  may  leave  him,  and  pledge  his  credit  elsewhere 
for  her  necessaries.* 

1  2  Kent  Com.  146,  147  ;  2  Bright  Hus.  &  Wife,  10-12 ;  Snover  v.  Blair,  1 
Dutch.  94  ;  Mayhew  v.  Thayer,  8  Gray,  172. 

*  See  Pollock,  C.  B.,  in  Johnston  v.  Sumner,  3  Hurl.  &  Nor.  261. 
3  3  Taunt.  421. 

*  Per  Lord  Elienborough,  Liddlow  v.  Wilmot,  2  Stark.  77 ;  1  Selw.  N.  P. 

[90] 


WIFE'S  DEBTS  AND   CONTRACTS.  *  90 

Where  the  wife  is  justified  on  any  of  the  above  grounds  in 
living  apart  from  her  husband,  he  is  not  discharged  from  lia- 
bility by  showing  that  her  contract  was  in  fact  made  without 
his  authority  and  contrary  to  his  wishes.  Nor  will  his  general 
advertisement  or  particular  notice  to  individuals  not  to  give 
credit  to  his  wife  affect  the  case.^  The  legal  presumption 
must  prevail  for  the  wife's  protection. 

Nor  in  such  cases  can  the  husband  terminate  his  liability 
for  necessaries  supplied  his  wife  during  the  separation  by  a 
simple  request  on  his  part  that  she  shall  return.^  And  it  is 
clear  that  if  he  only  offers  to  take  her  back  upon  conditions 
which  are  unreasonable  and  improper,  his  liability  continues.^ 
It  is  the  husband's  duty,  by  some  positive  act,  to  determine 
his  liability ;  though  if  the  wife  voluntarily  returns,  his  lia- 
bility for  necessaries  furnished  abroad  is  discontinued.  But 
in  default  of  any  amicable  arrangement,  he  must  institute 
proceedings  in  the  courts  with  divorce  jurisdiction.  And  until 
some  such  unequivocal  act  is  done,  a  person  making  a  proper 
claim  in  a  court  of  law  for  necessaries  supplied  to  the  wife 
may  be  entitled  to  recover  against  him.*  Where  the  wife  had 
good  reasons  for  leaving,  the  husband  is  not  discharged  by 
the  fact  of  her  subsequent  return  from  liability  for  necessaries 
furnished  during  her  justifiable  absence.^ 

But  the  wife  should  have  weighty  and  sufficient  cause  for 
leaving  her  husband  in  order  to  be  permitted  to  pledge  his 
credit  abroad.      In  general,  the  same  facts  suffice   as 
justify  *  divorce  from  bed  and  board.^     But  where  she    *  91 

298,  llth  ed. ;  per  Best,  C.  J.,  Houliston  v.  Smyth,  3  Bing.  127  ;  10  Moo.  482  ; 
2  Car.  &  P.  22 ;  Descelles  v.  Kadmus,  8  Clarke,  51 ;  Hultz  v.  Gibbs,  06  Peiin. 
St.  360.  And  for  the  board  of  the  child  taken  by  her,  too,  under  some  circum- 
stances. Reynolds  v.  Sweetser,  15  Gray,  78  ;  Bazeley  v.  Forder,  L.  R.  3  Q.  B. 
559. 

1  Harris  v.  Morris,  4  Esp.  41 ;  1  Selw.  N.  P.  298,  llth  ed. ;  2  Stra.  1214. 
See  Black  v.  Bryan,  18  Tex.  453. 

2  Emery  v.  Emery,  1  You.  &  Jer.  501. 

2  Reed  v.  Moore,  5  Car.  &  P.  200.  See  Flanagan  v.  Bishop  Wearmouth,  8  El. 
&  B.  451. 

*  Reed  v.  Moore,  supra.     See  Atkyns  v.  Pearce,  2  C.  B.  n.  s.  763. 

^  Reynolds  v.  Sweetser,  15  Gray,  78. 

<>  Brown  v.  Patton,  3  Humph.  135;  Hancock  v.  Merrick.  10  Cush.  41; 
Caney  v.  Patton,  2  Aslun.  140  ;  Rea  v.  Diirkee,  25  111.  503  ;  Schindel  v.  Schin- 
del,  12  Md.  294  ;  Stevens  v.  Story,  43  Vt.  327. 

[91] 


*91  HUSBAND  AND  WIFE. 

leaves  her  husband  without  sufficient  cause  and  against  his 
will,  she  cannot  bind  him  elsewhere  ;  especially  if  the  per- 
son furnishing  goods  knows  that  cohabitation  has  ceased,  and 
makes  no  further  inquiries.^ 

Supposing  the  wife  leaves  voluntarily  and  without  suffi- 
cient cause,  against  her  husband's  wishes,  and  she  afterwards 
returns  to  her  husband,  is  he  bound  to  receive  her ;  and,  if 
he  refuse  to  receive  her,  can  she  make  him  liable  for  debts 
contracted  thenceforth  for  necessaries  ?  The  current  of  au- 
thorities is  in  favor  of  such  a  position,  provided  she  conducted 
herself  properly  in  her  absence.^  Some,  however,  have  sug- 
gested doubts  as  to  this  doctrine  ;  for,  they  say,  since  the 
wife  by  her  own  voluntary  act  discharged  the  husband  from 
his  obligation  to  maintain  her,  by  unnecessarily  quitting  his 
house  without  his  consent,  it  is  but  reasonable  to  say  that  his 
liabihty  to  support  her  afterwards  should  not  be  revived  by 
implication  without  his  express  concurrence  in  consenting  to 
his  wife's  return  to  his  protection,  or  until  cohabitation  was 
restored  by  mutual  agreement,  or  by  the  sentence  of  a  court 
with  matrimonial  and  divorce  jurisdiction.^  This  is  fair 
reasoning  on  general  grounds,  and  applies  a  mutual  doctrine 
to  husband  and  wife,  but  the  courts  appear  to  have  thought 
otherwise. 

But,  as  the  reader  may  have  inferred,  if  the  wife  elopes 
and  commits  adultery,  or  if  her  adultery  causes  separation, 
the  husband  is  relieved  from  her  support.     Her  crime 
*  92    ought  *  to  put  an  end  to  her  authority  to  bind  the  in- 
jured spouse,  and  it  does."*     In  such  case  his  refusal  to 

1  Brown  v.  Midgett,  40  Vt.  68 ;  Etherington  v.  Parrott,  2  Ld.  Raym.  1006 ; 
Manby  v.  Scott,  1  Sid.  130 ;  Bailey  v.  Calcott,  4  Jur.  G99  ;  Collins  v.  Mitchell, 
5  Harring.  369. 

2  Manby  !'.  Scott,  1  Sid.  129 ;  1  Mod.  131 ;  Child  v.  Hardyman,  2  Stra. 
875  ;  Rawlins  r.  Vandyke,  3  Esp.  251  ;  Edwards  v.  Towels,  5  Man.  &  Gr.  624; 
Hindley  r.  Westnieath,  6  B.  &  C.  200 ;  Howard  r.  Whetstone,  10  Ohio,  365; 
McCutchen  v.  McGahay,  11  Johns.  281. 

3  See  2  Bright  Hus.  &  Wife,  13.  But  see  2  Bish.  Mar.  &  Div.  5th  ed.  §  33. 
The  husband  should  not  be  deprived  of  his  divorce  remedies. 

•4  Morris  v.  Martin,!  Stra.  647  ;  Man  waring  v.  Sands,  2  Stra.  707  ;  Hardie  v. 
Grant,  8  Car.  &  P.  512.  And  see  Rex  v.  Flintan,  1  B.  &  Ad.  227  ;  Hunter  v. 
Boucher,  3  Pick.  289  ;  Gill  v.  Read,  5  R.  I.  343 ;  Cooper  v.  Lloyd,  6  C.  B.  n.  s. 
519. 

[92] 


WIFE'S   DEBTS   AND   CONTRACTS.  *  92 

take  her  back  again  will  not  revive  his  obligation  to  maintain 
her.  But  as  forgiveness  always  interposes  a  bar  to  legal 
remedies  on  behalf  of  the  injured  one,  he  becomes  once  more 
liable  for  her  necessaries,  where  he  voluntarily  receives  her 
again  and  forgives  her.^ 

There  are  cases  where  the  marital  rights  and  duties  become 
more  confused.  Supposing  the  wife  be  turned  out  of  doors, 
or,  what  amounts  to  the  same  thing,  be  forced  b}'  her  hus- 
band's misconduct  to  leave;  and  she  afterwards,  being  beyond 
that  shelter  which  every  wife  needs,  commit  adulter}^ :  is  he 
then  relieved  from  supporting  her  ?  In  Govier  y.  Hancock  it 
was  held  that  he  was,  even  though  his  own  adultery  caused 
her  departure.^  This  was  a  very  harsh  decision.  The  court, 
however,  admitted  that  necessaries  furnished  before  her  own 
adultery  could  be  recovered  from  her  husband.  And  in  a 
subsequent  case  it  was  held  that  adulterous  conduct  of  the 
wife,  with  the  connivance  of  the  husband,  or  at  least  without 
such  a  separation  of  the  married  pair  as  to  make  her  miscon- 
duct notorious,  would  not,  per  se,  operate  as  a  defence  and 
protect  the  husband  from  liability.^  And  more  to  the  point 
is  a  case  decided  only  a  short  time  ago,  where  the  husband 
was  held  liable,  even  though  the  wife  had  been  found  guilty 
of  adultery  in  the  divorce  court ;  since  it  appeared  that  he 
also  had  been  found  guilty  of  adultery,  so  that  no  divorce  w^as 
decreed.^ 

There  is  a  dictum  of  Lord  Holt  to  be  found  in  an  old  case 
(or  rather  in  the  reporter's  note),  which  sometimes  finds  its 
way  to  the  text-books  ;  namely,  that  if  a  husband  re- 
ceives back  *  his  wife,  he  becomes  liable  for  her  debts  *  93 
contracted  during  the  whole  period  of  her  unauthorized 
absence.^  This  seems  very  unreasonable,  where  the  fault 
was  on  her  part.  The  true  doctrine  is,  doubtless,  that  after 
such  reconcihation  the  husband  is  liable  upon  her  subsequent 

1  Harris  v.  Morris,  4  Esp.  41  ;  IloLison  v.  Gosnold,  6  Mod.  171 ;  Holt  v.  Brien, 
4  B.  &  Aid.  252;  Quinoy  v.  Quincy,  10  N.  H.  272 ;  Hall  v.  Hall,  4  ib.  402. 
••i  6  T.  TJ.  603. 
3  Norton  r.  Fazan,  1  B.  &  P.  226. 

*  Needliaiii  v.  Breniner,  L.  R.  1  C.  P.  582. 

*  Robison  v.  Gosnold,  6  Mod.  171.     See  Bing.  Inf.  190  ».,  Am.  ed. 

[93] 


*  93  HUSBAND  AND  WIFE. 

contracts  only.     And  this  is  the  rule  expressly  asserted  in 
some  American  cases. ^ 

How  far  the  wife  can  contract  liability  for  necessaries  in 
her  own  person,  when  the  husband  is  discharged  by  her  delin- 
quency, was  considered  in  the  case  of  3Iarshall  v.  Button.^ 
Lord  Kenyon  observed,  that  it  was  not  a  necessary  conse- 
quence of  the  determination  of  the  husband's  responsibilty 
that  the  wife  should  be  at  liberty  to  act  as  a  feme  sole  ;  but 
that  the  contrary  was  the  truth  ;  and  that  any  persons  know- 
ino-  her  condition  who  chose  to  trust  her  could  not  complain 
if  they  found  themselves  unable  to  sue  her.  But  these  re- 
marks are  very  cautiously  put ;  and  it  seems  reasonable  to 
suppose,  as  Justice  BuUer  expresses  himself  in  the  case  upon 
which  Lord  Kenyon  commented,  that  the  wife  would  become 
liable  therefor ;  certamly  if  she  represents  herself  as  a  single 
woman.3 

It  is  to  be  carefully  observed  that  whenever  husband  and 
wife  separate,  under  circumstances  showing  misconduct  on  the 
part  of  either,  the  presumption  of  agency  changes  sides.  While 
they  cohabit  it  is  for  the  husband  to  show  a  want  of  authority  ; 
when  they  cease  to  cohabit  the  tradesman  must  prove  au- 
thority ;  that  is  to  say,  he  must  prove  that  the  wife  was  in 
need  of  the  goods,  that  the  husband  failed  to  supply  her,  and 
that  the  husband  and  not  the  wife  was  at  fault.  Prima  fade, 
therefore,  a  woman  living   apart  from    lier   husband,   upon 

involuntary  separation,  has  no  authority  to  bind  him.^ 
*  94        *  The  wife  of  a  lunatic  living  separate  from  her  in 
an  asylum,  may  yet  pledge  his  credit  for  necessaries.^ 

1  Williams  v.  Prince,  3  Strobh.  490 ;  Eeese  v.  Chilton,  26  Mis.  598.  See  also 
Chitty  Contr.  168  ;  Williams  v.  McGahay,  12  Johns.  293. 

2  8  T.  K.  547. 

3  Cox  V.  Kitchin,  1  B.  &  P.  889.  See  Childress  v.  Mann,  33  Ala.  20G ;  Mc- 
Henry  v.  Davies,  L.  R.  10  Eq.  88 ;  and  separate  estate  rights,  infra. 

*  Etherington  v.  Parrott,  2  Ld.  Raym.  1006  ;  Mainwaring  v.  Leslie,  1  Mood. 
&  Malk.  18 ;  Montague  v.  Benedict,  3  B.  &  C.  631  ;  per  Lord  Tenterden,  Clif- 
ford V.  Laton,  Mood.  &  Malk.  101 ;  3  Car.  &  P.  16  ;  Bird  v.  Jones,  8  M.  &  R. 
121 ;  Walker  v.  Simpson,  7  W.  &  S.  83;  Mitchell  v.  Treanor,  11  Geo.  324  ;  Rea 
V.  Durkee,  25  111.  603 ;  Pool  v.  Everton,  5  Jones,  241 ;  Porter  v.  Bobb,  25  Mis. 
36  ;  Stevens  v.  Story,  43  Vt.  327  ;  Sturtevant  v.  Starin,  19  Wis.  268.  But  see 
Frost  V.  Willis,  13  Vt.  202. 

5  Reed  v.  Legard,  4  E.  L.  &  Eq.  523 ;  Shaw  v.  Thompson,  16  Pick.  198.    A 

[94] 


WIFE'S  DEBTS  AND  CONTRACTS.  *  94 

But  not,  it  would  seem,  Avhere  he  is  in  prison  ;  for  then  the 
law  recognizes  her  as  feme  sole}  If  the  wife  be  in  an  insane 
asylum,  the  husband  is  not  the  less  liable  for  her  support.^ 
But  not  where  she  is  in  prison.^  And  it  seems  that  under 
circumstances  of  misconduct  on  the  wife's  part  the  husband 
may  compel  her  to  assent,  after  her  release  from  confinement, 
to  live  separate  on  an  allowance,  without  being  chargeable 
for  her  support  as  one  who  has  turned  his  wife  out  of  doors.^ 

The  fact  that  a  wife  is  left  by  her  husband  without  means 
of  support  does  not  authorize  her  to  give  away  household 
furniture,  which  he  left  in  her  possession,  in  payment  of  nec- 
essary services  to  herself.^  But  money  advanced  for  and 
applied  to  her  support,  under  like  circumstances  of  abandon- 
ment, may  te  recovered  of  him  in  equity.*^ 

But  besides  involuntary  separation,  there  is  the  case  of 
voluntarj'  separation  to  be  considered.  This  last,  now  so 
frequent,  the  law  tolerates,  but  does  not  favor.  The  rule  is, 
that  where  a  husband  and  wife  parted  by  mutual  consent,  and 
a  suitable  allowance  is  furnished  the  wife,  the  husband  is  not 
bound  to  pay  any  bills  which  she  may  have  contracted  as  his 
agent.'  It  is  enough  that  the  separation  be  a  matter  of  com- 
mon reputation  where  he  resides.  But  to  this  allowance  two 
things  are  requisite :  first,  that  it  shall  be  really  sufficient 
for  the  wife  ;  second,  that  it  shall  be  regularly  paid.  If 
either  requirement  be  wanting,  the  wife  is  not  confined  to 
her    remedy   on   the   deed  of   separation,   if   any,  but  may 

wife  who  receives  sufficient  income  cannot  pledge  the  credit  of  lier  lunatic  hus- 
band beyond  it,  even  on  the  plea  of  necessary  house  repairs.  Kichardson  v, 
Du  Bois,  L.  R.  5  Q.  B.  51. 

1  Reeve  Dom.  Rel.  80. 

2  Wray  v.  Wray,  33  Ala.  187.  And  see  Alna  v.  Plummer,  4  Greenl.  258 ; 
Wray  v.  Cox,  24  Ala.  387  ;  Brookfield  v.  Allen,  6  Allen,  585. 

8  Fowler  v.  Sir  John  Dineley,  2  Stra.  1122.    See  Bates  v.  Enright,  42  Me.  105. 

*  Sec  n.  2,  supra. 

6  Edgerly  v.  Whalan,  lOG  Mass.  307. 

6  Deare  v.  Soutten,  L.  R.  0  Eq.  151.     And  see  supra,  p.  79. 

'  Dixon  V.  Hurrell,  8  Car.  &  P.  717;  Todd  v.  Stokes,  1  Salk.  116;  1  Ld. 
Raym.  444 ;  Hindley  v.  Westmeath,  6  B.  &  C.  200 ;  Migen  v.  Peck,  3  M.  &  W. 
481 ;  Reeve  v.  Marquis  of  Conyngham,  2  Car.  &  K.  444 ;  Calkins  v.  Long,  22 
Barb.  97  ;  Kemp  v.  Downham,  6  Harring.  417  ;  Caney  v.  Patton,  2  Ashm.  140  ; 
Baker  v.  Barney,  8  Johns.  72 ;  Mott  v.  Comstock,  8  Wend.  644  ;  Willson  v. 
Smyth,  1  B.  &  Aid.  801. 

[95] 


*  94  HUSBAND   AND   WIFE. 

*  95    pledge  her  husband's  credit.     *As  to  the  first  require- 

ment, the  question  is  not  Avhether  the  wife  consented 
to  accept  a  certain  allowance  as  sufficient  for  her  support,  but 
whether  it  be  actually  sufficient  in  the  opinion  of  the  jury.^ 
As  to  the  second,  the  mere  covenant  or  contract  of  the  hus- 
band to  pay  separate  maintenance  will  not  discharge  him 
from  liability  for  necessaries  ;  for,  as  was  observed  in  a  lead- 
ing case,  "  the  common  law  does  not  relieve  any  man  from 
an  obligation  on  the  mere  ground  of  an  agreement  to  do 
something  else  in  the  place,  unless  that  agreement  be  per- 
formed." ^  But  perhaps  it  would  be  held  otherwise  where 
articles  of  separation  provide  that  the  wife  shall  be  paid 
through  a  trustee,  and  the  trustee  squanders  or  misapplies 
the  allowance  which  is  properly  paid  into  his  hands.^  Allow- 
ance of  a  separate  maintenance  will  not  exempt  the  husband 
from  liabilities  caused  b}^  his  own  misconduct.'^ 

Where  a  husband  compels  his  wife  to  live  apart  from  him 
by  his  misconduct,  he  is  liable  for  her  necessaries,  notwith- 
standing his  allowance,  so  long  as  that  allowance  is  insuffi- 
cient, and  she  has  no  proper  means  of  support.^ 

The  payment  of  alimon}^,  although  insufficient,  will  dis- 
charge the  husband  from  liability  for  his  wife's  necessaries.^ 
But  the  husband  is  liable  for  necessaries  supplied  to  the  wife 
before  alimony  is  decreed,  although  the  decree  afterwards 
direct  the  alimony  to  commence  from  a  day  preceding  the 
supply  of  the  necessaries."  It  is  immaterial  whether  the 
wife's  allowance  be  secured  by  deed  or  not,  since  it  is 
the  payment  which  discharges  him.^     And  of  course,  where 

1  Thompson  v.  Harvey,  4  Burr.  2177  ;  Hodgkinson  v.  Fletcher,  4  Camp.  N.  P. 
70;  Pearson  v.  Darrington,  32  Ala.  227;  Litldlow  v.  Wilmot,  2  Starkie,  77; 
Emmet  v.  Norton,  8  Car.  &  P.  506. 

2  Nurse  v.  Craig,  5  B.  &  P.  148,  per  Heath,  J.  ;  Hindley  v.  Westmeath,  6  B. 
&  C.  200;  Lockwood  v.  Thomas,  12  Johns.  248;  Kimball  v.  Keyes,  11  Wend. 
33. 

3  Calkins  v.  Long,  22  Barb.  97.    But  see  Burrett  v.  Booty,  8  Taunt.  343. 

4  Turner  v.  Rookes,  10  Ad.  &  El.  47. 

5  Litson  V.  Brown,  26  Ind.  469 ;  Baker  v.  Sampson,  14  C.  B.  N.  9.  383. 

6  Willson  V.  Smyth,  1  B.  &  Ad.  801. 

T  Keegan  v.  Smyth,  5  B.  &  C.  375;  Mitchell  v.  Treanor,  11  Geo.  324.  See 
Dowe  V.  Smith,  11  Allen,  107  ;  and  infra,  ch.  17. 

8  Hodgkinson  v.  Fletcher,  4  Camp.  70 ;  Emery  v.  Neiglibor,  2  Halst.  142 ; 
Holden  i;.  Cope,  2  Car.  &  K.  437.     But  see  Ewers  v.  Hutton,  3  Esp.  255. 

[  ye  ] 


WIFE'S   DEBTS   AND    CONTRACTS.  *  95 

the  fact  of  separation  is  not  commonly  known,  or  where  by 
occasional  visits  the  husband  keeps  up  the  appearance 
of  cohal)itation  with  his  wife,  he  is  j^rirna  *  facie  liable  *  9G 
as  before ;  ^  though  notice  of  an  allowance  is  notice  of 
his  dissent  to  the  wife's  contracts.^  He  may  agree  with  the 
wife's  tradesman,  while  living  apart  fi-om  her,  that  the  goods 
supplied  shall  not  be  charged  to  him  ;  and  to  such  special 
agreement  the  tradesman  will  be  held.^ 

Courts  will  always  regard  the  rule  of  good  faith  in  matters 
relative  to  the  wife's  necessaries.  Thus  if  the  husljand  and 
wife  be  living  apart  without  the  husband's  fault,  and  he  wislies 
to  terminate  his  liability  by  requesting  her  to  return  home,  his 
conduct  must  show  sincerity  ;  though,  if  his  intentions  are 
bona  ficle^  and  he  makes  suitable  provision  at  his  own  home, 
the  wife  forfeits  all  claim  to  further  support  by  refusing  to 
return.*  So  where  a  husband  expels  his  wife  and  afterwards 
designedly  misleads  her  into  the  belief  that  he  is  dead,  where- 
upon she  marries  another  with  honest  motives,  and  leaves 
him  at  once  on  learning  that  her  husband  is  alive,  her  hus- 
band cannot  set  up  her  bigamy  as  a  defence  to  an  action 
against  him  for  her  subsequent  necessaries." 

The  case  of  Johnston  v.  Sumner  came  before  the  English 
Exchequer  Court  in  1858.^  A  married  pair  had  separated  by 
mutual  consent,  with  the  understanding  that  the  wife  should 
receive  .£200  a  year,  for  her  maintenance,  from  a  fund  settled 
on  her  at  the  time  of  marriage.  A  third  person,  wlio  after- 
wards supplied  her  with  necessaries,  sued  the  husband  to 
recover  payment.  The  court  ruled  that  the  latter  was  not 
liable  unless  the  plaintiff  could  show  that  the  wife's  allow- 
ance was  insufficient ;  that  the  burden  of  proof  was  upon 
him  and  not  upon  the  husband.  In  this  case  the  law  of 
agency  for  necessaries  was  very  fully  discussed,  and  the  prin- 
ciple laid  down  that  whether  separation  be  voluntary 
or  involuntary,  so  *  long  as  the  parties  live  apart  the    *  97 

1  Kawlins  v.  Vandyke,  3  Esp.  250,  per  Lord  Eldon. 

2  Hiiiton  V.  Hudson,  Freem.  248;  Kimball  v.  Keyes,  11  "Wend.  33. 

3  Dixon  V.  Hurrell,  8  Car.  &  P.  717. 

4  Walker  v.  Laiglilon,  11  Foster,  111. 

5  Cartwriglit  v.  Bate,  1  Allen,  514.     Ste  Tidgin  v.  Cram,  8  N.  H.  350. 

6  3  Hurl.  &  Nor.  2G1. 

7  [97] 


*  97  HUSBAND   AND   WIFE. 

burden  of  proof  is  upon  the  person  who  supplies  the  com- 
modities. Chief  Baron  Pollock,  after  stating  that  the  only- 
ground  of  the  husband's  liability  for  his  wife's  necessaries, 
in  am?-  case,  is  that  of  agency,  observes,  that  this  agency 
may  be  either  exj^ress  or  implied,  arising  sometimes  from  con- 
duct which  induces  others  to  believe  that  an  agency  in  fact 
exists  ;  or  that  there  may  be  an  agency  of  necessity,  such  as 
the  captain  of  a  ship  sometimes  exercises.  If  a  man  and  his 
wife  live  together,  it  matters  not  what  private  agreement  they 
may  make,  the  wife,  as  such,  has  authority  to  bind  him.  If 
the  husband  turns  her  away,  it  is  not  unreasonable  to  say 
that  she  has  an  authority  of  necessity  ;  for  she  by  law  has  no 
property,  and  cannot  earn  her  own  living.  If,  however,  she 
leaves  against  his  wdll  and  without  misconduct  on  his  part, 
she  has  none  of  the  ordinary  authorities  of  a  wife,  for  she  is 
not  in  the  ordinary  case  of  a  wife,  namely,  living  with  her 
husband ;  nor  has  she  authority  of  necessity,  because  she  has 
brought  the  condition  on  herself.  She  has  no  express  or 
implied  authority.  Now  suppose  she  leaves  with  his  consent, 
but  without  misconduct  on  his  part,  she  has  not  the  ordinary 
authority  of  a  wife  living  with  her  liusband,  nor  any  au- 
thority of  necessity.  Her  authority  must  therefore  be  express 
or  implied.  It  is  admitted  that  in  this  case  there  was  no  ex- 
press authority.  But  was  there  an  implied  authority  ?  Now, 
where  they  part  by  mutual  consent,  and  nothing  is  said  of 
an  allowance,  and  she  has  no  means  of  support,  a  jury  might 
infer  that  the  husband  meant  that  his  credit  should  be 
pledged,  —  perhaps  even  though  he  said  otherwise.  But 
upon  what  principle  can  an  authority  be  imjilied  where  they 
part  upon  terms  negativing  any  authority  in  her,  and  making 
a  provision  for  her  not  shown  to  be  insufficient  for  her  main- 
tenance ?  The  case  is  not  essentially  different  from  that  of  a 
wife  leaving  against  her  husband's  will ;  nor  can  the  line  be 
readily  drawn  so  as  to  distinguish  the  two.  "  We  think  the 
more  convenient  rule  is  that  which  we  have  suggested ; 

*  98    namely,  an  authority  must  be  shown,  and  shown  *  in 

one  or  the  other  of  the  ways  we  have  mentioned."  ^ 

1  Per  Pollock,  C.  B.,  Johnston  v.  Sumner,  3  Hurl.  &  Nor.  261.     See  also  Ozard 
V.  Darnford.  2  Sel.  N.  P.  275,  10th  ed.;  Hodgkinson  i:  Fletcher,  4  Camp.  70; 

[98] 


"WIFE'S  DEBTS  AND   CONTRACTS.  *  98 

Such,  in  brief,  is  tlie  law  of  the  wife's  agency  in  procuring 
necessaries,  as  expounded  by  recent  English  authority.  This 
decision  is  chieflj'  as  to  the  burden  of  proof  ;  the  requirements 
being  usually  as  we  have  stated. 

The  wife  may  bind  her  husband  for  other  contracts  than 
those  for  necessaries,  where  an  agency,  express  or  implied, 
can  be  shown.  The  natural  incapacities  of  her  sex  superadded 
to  those  of  the  marriage  state,  the  practical  difficulties  which 
persons  dealing  through  such  an  agent  must  encounter,  par- 
ticularly where  they  find  she  has  exceeded  her  authority,  and 
yet  cannot  hold  her  liable  in  person,  her  own  exposure  to 
fraud,  deceit,  and  coercion,  —  all  these  combine  to  render  the 
wife  an  undesirable  business  representative  ;  and  cases  of  this 
sort  come  rarely  before  the  courts.  But  the  wife  may  be 
delegated  an  attorney,  even  under  a  sealed  instrument.^  And 
on  principle  there  is  little  reason  to  doubt  her  capacity  to 
bind  her  husband  in  all  general  transactions  where  he  has 
given  an  express  authority.  So  too  her  agency  may  be  in- 
ferred from  his  acts  and  conduct  respecting  her  ;  and  the 
general  rule  aj^plies  that  such  agency  is  to  be  measured  by 
the  scope  of  the  usual  employment.^ 

The  usual  cases  in  which  a  wife  binds  the  husband 
on  contracts  *  not  for  necessaries  may  be  reduced  to  two    *  99 
classes  :  the  one  where  the  nature  of  his  employment  is 
such  that  the  wife  is  expected  to  share  in  it ;  the  other  where 
he  is  absent  from  home,  and  some  one  must  carry  on  the 

Liddlow  V.  Wilmot,  2  Stark.  N.  P.  77  ;  Emmet  v.  Norton,  8  Car.  &  P.  506  ;  Nurse  r. 
Craig,  5  B.  &  P.  148 ;  Willson  v.  Smith,  1  B.  &  Ad.  801  ;  Holden  v.  Cope,  2  Car.  & 
K.  4.37;  2  Roper  Hus.  &  Wife,  108,  wiiich  are  all  commented  upon  in  tiiis  case, 
and  doctrine  of  2  Smith's  Lead.  Cas.  389,  denied.  The  court  considered  it  doubt- 
ful whether,  if  a  laboring  man  turns  his  wife  away,  she  being  capable  of  earning, 
and  earning  as  mucli  as  he  did ;  or  if  a  man  turn  his  wife  away,  she  having 
a  settlement  double  his  income  in  amount,  the  wife  in  such  cases  could  bind 
the  husband.  The  drift  of  the  law  where  wives  own  separate  property,  is  in 
this  case  plainly  indicated.     See  infra,  ch.  12. 

1  Goodwin  v.  Kelly,  42  Barb.  194. 

2  Cox  V.  Hoffman,  4  Dev.  &  Batt.  180;  Mackinley  v.  McGregor,  3  Whart. 
369;  Camelin  v.  Palmer  Co.,  10  Allen,  539;  Ruddock  v.  Marsh,  38  E.  L.  &  Eq. 
515 ;  Pickering  v.  Pickering,  6  N.  II.  124  ;  Abbott  v.  Mackinley,  2  Miles,  220 ; 
Gray  v.  Otis,  11  Vt.  628 ;  Miller  v.  Delamater,  12  Wend.  433  ;  Hughes  v.  Stokes, 
21  Hayw.  372. 

[99] 


*  99  HUSBAND   AND   WIFE. 

household  and  small  business  matters.  Instances  of  the  first 
class  are  those  of  farmers,  victuallers,  and  small  shopkeepers.^ 
While,  on  behalf  of  married  women,  extended  authority  is  to 
be  miplied  from  the  fact  of  a  husband's  absence,  as  in  our 
second  class,  every  wife  will  readily  be  regarded  as  her  hus- 
band's representative  in  the  ordinary  household  purchases, 
such  as  provisions  and  furniture,  although  the  articles  may 
not  be  strictly  included  among  her  personal  necessaries. 
They  might  be  called  household  necessaries.  But  where  the 
husband  is  a  laboring  man,  or  in  general  a  person  obliged  to 
be  absent  from  his  home  much  of  the  time,  the  presumption 
of  the  wife's  agency  would  be  stronger  and  extend  further. 
If  the  occupation  be  that  of  carrying  on  a  farm,  or  if  small 
bills  are  to  be  collected,  such  as  he  and  his  wife  have  always 
attended  to,  her  powers  in  his  absence  take  a  still  wider  scope ; 
and  this  too  seems  reasonable.  Usage  will  go  far  in  deter- 
mining such  questions.  But  since  persons  carrying  on  a 
large  business,  totally  distinct  from  their  household  occupa- 
tion, are  nut  in  the  habit  of  employing  their  wives  to  manage 
it  for  them,  strong  proof  of  agency  for  such  transactions  should 
be  required  to  warrant  a  Avife's  interference  during  her  hus- 
band's absence  ;  the  more  so  if  he  has  left  other  competent 
aoents  of  his  own  to  manage  the  business  for  him.  So  too  in 
large  pecuniary  affairs  of  whatever  nature  her  agency  is  not 
readily  inferred  ;  while  it  often  is  in  collecting  rents  and  pay- 
ing tradesman's  bills ;  such  payments  and  receipts  being  per- 
mitted to  bind  her  husband.  And  although  a  wife  may,  by 
actual  authority  from  her  husband,  indorse  his  notes,  mortgage 
and  dispose  of  his  personal  property,  conduct  his  business  as 
a  trader,  and  even  borrow  money  for  carrying  on  his  business 
on  the  pledge  of  his  credit,  signing  the  notes  and  secu- 

*  100    rities  in  his  behalf,  —  for  all  this  is  sometimes  *  done,  — 

such  authority  requires  strict  proof;  or  at  least  conduct 
on  the  part  of  the  husband  showing  his  own  approval  of  such 
hazardous  proceedings  on  her  part.^ 

1  See  Webster  r.  McGinnis,  5  Binn.  235;  Botch  v.  Miles,  2  Conn.  638. 

2  Church  V.  Landers,  10  Wend.  79  ;  Gates  v.  Brower,  5  Seld.  205 ;  Leeds  v. 
Vail,  15  Penn.  St.  185;  Alexander  v.  Miller,  16  Penn.  St.  215;  Burk  v.  How- 
ard, 13  Mis.  241 ;  Godfrey  v.  Brooks,  5  Harring.  396 ;  Savage  i'.  Davis,  18  Wis. 

[100] 


WIFE'S  DEBTS   AND    CONTRACTS.  *  100 

The  difficulty  of  laying  down  a  more  positive  rule  on  this 
subject  is  shown  by  two  cases  which  came  before  the  courts  of 
two  of  our  neighboring  States,  not  many  j'ears  since,  on  a 
presentation  of  facts  ahuost  identical,  but  where  the  respec- 
tive decisions  were  precisely  opposite.  A  farmer  was  absent 
from  home.  His  wife  had  been  left  in  charge  of  the  farm, 
but  without  express  authority  from  him.  A  creditor  attached 
the  real  estate  and  crops ;  and  she  permitted  the  hay  after 
attachment  to  be  used  by  the  officer ;  to  the  advantage  of 
the  creditor,  or  at  least  to  her  husband's  detriment.  In  the 
Vermont  case,  it  was  held  that  the  wife  had  a  jjrima  facie 
authority  to  bind  her  husband  ;  in  the  Connecticut  case,  it 
was  held  that  she  had  not.  Neither  of  these  tribunals  erred 
in  their  statement  of  leading  principles,  but  their  duty  here 
being  ratlier  an  application  of  broad  rules  to  facts,  than  a 
clearly  legal  deduction,  they  differed  just  as  two  men  would 
have  done,  sitting  upon  a  jury.^ 

In  accordance  with  the  princij)les  just  stated,  it  is  recently 
held,  that  where  a  husband  permits  his  wife  to  carr}-  on  a 
certain  business  in  his  name,  and  to  draw  in  his  name  checks 
and  notes  to  be  used  in  the  course  of  the  business,  she  cannot 
make  him  liable  as  surety  for  loans  to  third  persons,  or  upon 


608;  Krebs  v.  O'Gradjr,  23  Ala.  726;  Sawyer  v.  Cutting,  23  Vt.  486;  Shaw  v. 
Emery,  38  Me  484 ;  Spencer  v.  Tisue,  Addis.  316  ;  Green  v.  Sperry,  16  Vt. 
390;  Reakert  v.  Sandford,  5  Watts  &  Serff.  164;  Abbott  v.  M'Kinley,  2  Miles, 
220;  Mayse  v.  Bigjrs,  3  Head,  36;  Shoemaker  l:  Kuiikle,  5  Watts,  107;  Gil- 
bert V.  Pliint,  18  Iiul.  308.  See  subsequent  chapters  as  to  wife's  power  to 
bind  re.'il  estate  by  her  contracts.  It  seems  that  contracts  made  by  tiie  wife  as 
agent,  including  promissory  notes,  should  show  such  authority  on  the  face. 
Minard  v.  Mead,  7  Wend.  08;  Galusha  v.  Ilitclicock,  2'.>  Barb.  V.)3  ;  2  Man.  & 
Or.  172. 

1  Felker  v  Emerson,  16  Vt.  653 ;  Benjamin  v.  Benjamin,  1.5  Conn.  347.  A 
third  person  may  be  sued  on  a  contract  made  with  a  married  woman  after  she 
has  performed  her  part,  although  she  had  no  right  to  make  it.  Ham  v.  Boody, 
20  N.  H.  411 ;  Lowry  v.  Naff,  4  Cold.  370.  See  1  Greenl.  Evid.  §  185 ;  Plim- 
mer  v.  Sells,  3  N.  &  M.  422 ;  Dodd  v.  Acklom,  6  M.  &  Gr.  673 ;  Thrasher  v. 
Tuttle,  22  Me.  335;  Hopkins  v.  Mollineux,  4  Wend.  465;  Fiimer  v.  Lynn,  4  N. 
&  M.  55'J  ;  Taylor  v.  Green,  8  Car.  &  P.  316  ;  Gulick  v.  Grover,  4  Vroom,  463, 
as  to  the  rule  of  evidence  sufficient  to  show  tiie  wife's  authority  to  manage  her 
husband's  business.  The  principles  of  ordinary  agency  generally  apply  in  such 
cases.  See  also  Wharton  v.  Wright,  1  Car.  &  K.  585 ;  Clifford  r.  Burton,  1  Bing. 
199;  Pett3^  v.  Anderson,  3  Bing.  170;  Emerson  ;;.  Blounden,  1  Esp.  142. 

[101] 


*   100  HUSBAND  AND   WIFE. 

mere  accommodation  paper,  merely  because  of  such  an  agency.^ 
And  where  her  agency  extends  only  to  the  performance  of 
certain  specific  acts  of  a  general  transaction,  she  cannot  bind 
him  by  her  acts  and  admissions  respecting  other  matters  con- 
nected with  the  general  transaction.^  Acts  done  by  the  wife 
in  relation  to  her  husband's  property,  without  authority, 
should,  of  course,  be  promptly  disavowed  by  him  within  a 
reasonable  time,  if  he  wishes  to  escape  responsibility.^  Her 
sale  or  gift  of  his  personal  property,  even  without  authority, 
may  be  confirmed  by  his  subsequent  acts  amounting  to  ratifi- 
cation.* 

The  wife  may  represent  her  husband,  not  only  in  the 
general  management  of  his  own  lands,  so  as  to  bind  him,  but, 
under  certain  circumstances,  with  reference  to  her  real  estate 
in  which  he  has  the  usual  marital  rights,  or  lands  owned  partly 
by  her  and  partly  by  him.^ 

1  Gulick  V.  Grover,  2  Vroom,  182 ;  4  Vroom,  463. 

2  Gooilrich  v.  Tracy,  43  Vt.  314. 

'^  Plill  V.  Sewald,  53  Penn.  St.  271.  See  Header  v.  Page,  39  Vt.  306,  where 
a  wife,  in  contracting  a  loan,  was  held  to  have  acted  within  tlie  scope  of  her 
apparent  agency.  As  to  the  revocation  of  a  liusband's  license  to  hunt,  see  Kel- 
logg V.  Robinson,  82  Conn.  335. 

4  Dunnahoe  v.  Williams,  24  Ark.  264 ;  Pike  v.  Baker,  53  111.  163.  Even  a 
trifling  gift  from  the  wife  by  way  of  charity  has  been  upheld,  though  witliout 
the  husband's  permission.  Spencer  v.  Storrs,  38  Vt.  156.  See,  as  to  real  estate, 
p.  157. 

5  See  Cheney  v.  Pierce,  38  Vt.  515 ;  Dresel  v.  Jordan,  104  Mass.  407. 

[102] 


WIFE'S   INJURIES   AND   FRAUDS.  *  101 


*  CHAPTER  IV.  *101 

THE    EFFECT     OF     COVERTURE     UPON     THE     WIFE's     INJURIES     AND 

FRAUDS. 

Frauds  and  injuries  may  have  been  committed  upon  the 
wife  ;  or  they  may  have  been  committed  by  the  wife.  Again 
they  may  have  been  committed  before  coverture  ;  or  they 
may  have  been  committed  during  coverture.  Once  more, 
the}^  may  have  reference  to  the  person  ;  constituting  a  bodily 
injury,  such  as  assault  and  battery,  or  an  injury  to  the  char- 
acter, such  as  slander ;  or  they  may  have  reference  to  prop- 
erty. But  in  any  event,  so  far  as  the  fraud  or  injury  is  made 
the  subject  of  a  civil  suit,  the  general  principle  of  the  wife's 
disability  remains  the  same  ;  namely,  that  the  husband  com- 
pensates or  receives  the  compensation. 

This  principle  does  not  of  course  extend  to  criminal  prosecu- 
tions. For,  as  Blackstone  observes,  the  union  is  only  a  civil 
union. ^  Or,  to  come  more  to  the  point,  it  would  be  cruel  and 
unjust  to  punish  one  person  for  the  crime  of  another,  or  even 
to  compel  the  two  to  bear  the  penalty  together  ;  while  it 
would  be  impolitic,  as  well  as  unjust,  to  allow  any  relation 
which  human  beings,  morally  responsible,  might  sustain  with 
one  another  to  absolve  either  from  civil  accountability.  Here 
coverture  as  a  theory  contradicts  itself,  by  leaving  the  wife 
answerable  alone  for  her  crimes,  just  as  a  single  woman.  The 
utmost  the  law  can  do  is  to  furnish  a  presumption  of  innocence 
in  her  favor  in  cases  where  the  coercion  of  her  husband  may 
be  reasonably  inferred.  This  indulgence,  it  is  said,  is  carried 
so  far  as  to  excuse  her  from  punishment  for  theft,  burg- 
lary, or  other  civil  offences  "  against  the  laws  of  society," 

1  1  Bl.  Com.  443. 

[103] 


*  101  HUSBAND   AND   WIFE. 

*  102    when  committed  in  the  presence  or  by  the  *  command 

of  her  husband  ;  but  not  so  as  to  exculpate  the  wife 
for  moral  offences.  For  mala  prohibita  she  is  not  punished, 
for  mala  in  se  she  is.  Such  a  distinction  is  variable  and 
somewhat  shadowy  ;  the  line  seems  to  be  drawn  more  wiselj^ 
if  at  all,  between  such  heinous  crimes  as  murder  and 
manslaughter,  and  the  lighter  offences. ^  And  the  better 
opinion  is,  decidedly,  that  in  all  cases  coercion  is  only  a  pre- 
sumption, which  may  be  rebutted  by  evidence  to  the  con- 
trary."^ 

As  to  private  wrongs  the  question  occurs,  why  should  the 
husband  be  made  to  stand  in  the  wife's  place  where  the  offence 
is  considered  against  an  individual,  any  more  than  when  it  is 
between  herself  and  the  State.  This  seems  to  be  the  true 
answer,  as  in  case  of  her  debts  dum  sola  ;  namely,  that  the 
husband  adopts  her  and  her  circumstances  together  ;  that  he 
takes  her  fortune,  if  she  has  one,  and  assumes  all  possible 
liabilities  therefrom. 

We  must  however  notice  one  important  distinction  made 
between  the  wife's  general  contracts  and  her  frauds  and  in- 

1  2  Kent  Com.  11th  ed.  150;  4  Bl.  Com.  28,  29,  and  Christian's  notes;  1 
Hawk.  P.  C.  b.  1,  ch.  1,  §  9;  1  Russ.  Crimes,  18-24. 

'^  2  Kent  Com.  11th  ed.  150;  State  w.  Parkerson,  1  Strobh.  169;  1  Russ. 
Crimes,  22;  Rex  v.  Martha  Hughes,  coram  Thomson,  B.,  2  Lew.  C.  C  229; 
Ulil  V.  Commonwealth,  6  Gratt.  TOG  ;  Wagener  v.  Bill,  19  Barb.  321.  But  a  wife 
cannot  be  convicted  of  feloniously  receiving  stolen  goods  from  her  husband. 
Regina  v.  Brooks,  14  E.  L.  &  Eq.  580.  And  see  Regina  v.  Robinson,  L.  R.  1  C. 
C.  80.  See  also,  on  the  general  subject  of  coercion,  8  Car.  &  P.  19,  541  ;  Anon., 
2  East  P.  C.  559  ;  1  Greeul.  Evid.  10th  ed.  §  28.  In  general,  the  presumption 
of  coercion  is  regarded  as  something  to  be  easily  rebutted,  in  the  latest  cases 
where  the  wife  has  been  indicted;  especially  in  tliat  class  of  cases  which  relates 
to  the  illegal  sale  of  liquors,  a  business  in  which  married  women  frequently 
engage.  State  v.  Cleaves,  59  Me.  298 ;  Commonwealth  v.  Tryon,  99  Mass.  442. 
As  to  assault  and  battery,  see  State  v.  Williams,  65  N.  C.  398.  And  as  to  stolen 
goods  concealed  in  a  house  occupied  by  both  husband  and  wife,  see  Perkins  v. 
State,  32  Tex.  109.  Both  husband  and  wife  may,  of  course,  be  found  guilty  of 
a  crime.  See  Mulvey  v.  State,  43  Ala.  316  ;  State  v.  Potter,  42  Vt.  495.  As 
to  whether  a  wife  is  exempt  from  criminal  responsibility  for  what  she  does 
while  her  husband  is  absent,  see  State  v.  Potter,  42  Vt.  495;  Commonwealth  v. 
Lewis,  1  Met.  151 ;  Commonwealth  v  Fconey,  12  Allen,  560.  Presumi)tion  of 
coercion  rebutted  in  a  murder  case,  wliere  wife  had  conspired  with  her  husband 
to  commit  robbery.    Miller  v.  State,  25  Wis.  384. 

[104] 


WIFE'S   INJURIES   AND   FRAUDS.  *  102 

juries.  In  the  one  case  the  husband  is  held  liable  to  third 
parties  for  her  acts  as  agent,  even  though  never  married  to 
her;  and  sinq^le  cohaljitation  is  sufficient  to  charge  him.  But 
simjjle  cohabitation  will  not  be  enough  to  make  him  respon- 
sible for  her  civil  injuries.  Marriage  in  fact  must  appear. 
And  this  last  principle  applies  likewise  where  he  seeks  indem- 
nity for  her  injuries.^  The  facility  with  which  an  agency  is 
created  at  law  may  serve  to  explain  the  difference  between 
the  two  cases. 

The  general  rule  of  law  is  that  the  husband  is  liable  for  the 
frauds  and  injuries  of  the  wife,  whether  committed 
before  or  *  during  coverture  ;  if  committed  in  his  com-  *  103 
pany  or  by  his  order,  he,  and  he  alone,  is  liable  ; 
otherwise,  both  are,  for  the  time  being,  liable.^  For  where 
the  fraud  or  injury  is  committed  in  his  company  or  by  his 
order,  coercion  is  presumed,  and  the  husband  becomes  the 
only  wrong-doer  ;  and  where  committed  without  his  order  and 
in  his  absence,  the  wife  is,  in  reality,  the  offending  party, 
while  the  husband  has  become  responsible  for  her  acts  by 
reason  of  her  coverture.  In  the  latter  class  of  cases  the  hus- 
band is  properly  joined  with  his  wife  in  the  suit ;  for  if  the 
wife  alone  Avere  sued,  his  property  might  be  seized  without 
giving  him  an  opportunity  for  defence  ;  and  if  the  husband 
alone  were  sued,  he  would  become  chargeable  absolutely.  In 
the  former  class  of  cases  the  husband  is  sued  alone.^ 

The  last  statement  suggests  that  the  husband's  liability  is 
after  all  a  limited  one,  where  he,  in  the  first  instance,  was 
free  from  wrong ;  that  is  to  say,  that  the  death  of  the  wife 
before  the  recovery  of  damages  puts  an  end  to  his  liability 
altogether.  This  is  correct,  not  only  on  the  principle  an- 
nounced in  the  case  of  the  wife's  debts  dum  sola,  but  because 
wrongs  being  personal,  die  with  the  person,  which  last  is  the 

1  Overholt  v.  Ellswell,  1  Ashm.  200.     See  Norwood  v.  Stevenson,  Andr.  227. 

'i  2  Kent  Com.  149 ;  Bing.  Inf.  256,  257  ;  Angel  v.  Felton,  8  .Johns.  149 ;  Gage 
V.  Reed,  15  111.  403 ;  Carl  v.  Wonder,  5  Watts,  97 ;  Whitman  v.  Delano,  6  N.  H. 
543  ;  Gray  v.  Tliacker,  4  Ala.  136  ;  McKeown  v.  Johnson,  1  MeCord,  578  ;  Ben- 
jamin V.  Bartlett,  3  Miss.  86 ;  Wrigiit  v.  Kerr,  Addis.  13 ;  Cassin  i'.  Delany, 
38  N.  Y.  178 ;  Bali  v.  Bennett,  21  Ind.  427 ;  Marshall  v.  Oakes,  51  Me. 
308. 

»  Park  V.  Hopkins,  2  Bailey,  411 ;  Matthews  v.  Fiestel,  2  E.  D.  Smith,  90. 

[105] 


*  103  HUSBAND   AND   WIFE. 

common  explanation  of  this  rule.  If  the  husband  dies  before 
damages  are  recovered  in  the  suit,  the  wife  alone  remains 
liable.^  So  it  would  seem  that  the  common  law  recognizes  a 
liability  on  her  part  which  continues  through  the  marriage 
relation  ;  coverture  operating,  however,  so  as  to  suspend  the 
remedy  against  the  married  woman,  and  to  bring  in  as  a  joint 
party  the  custodian  of  her  fortune. 

This  presumption  of  coercion,  too,  is  much  the  same  in 
civil  as  in  criminal  offences.     A  wrong  committed  by 

*  104    the  wife  in  company  *  with  her  husband,  or  by  his 

order,  is  presumed  to  have  been  involuntary  on  her 
part  and  compelled  by  her  husband  ;  and  we  have  supposed 
that  this  presumption  may  be,  in  either  instance,  controlled 
by  evidence  to  the  contrary.  The  legal  definition  "in  com- 
pany with  "the  husband  should,  however,  receive  a  liberal 
interpretation,  so  as  to  include  all  cases  of  constructive  pres- 
ence. It  is  said  that  the  privilege  of  presumptive  coercion 
extends  to  no  other  person  than  a  wife,  not  even  to  a  ser- 
vant.2 

Hence  husband  and  wafe  are  sued  together  for  the  libel 
or  slander  of  the  wife ;  and  generally  for  forfeitures  under  a 
penal  statute.^  So  too  for  assault  and  battery.^  The  fact 
that  the  husband  is  made  responsible  by  the  fact  of  coverture, 
and  did  not  commit  the  wrong  in  person,  cannot  go  in  mitiga- 
tion of  damages.^  The  husband  has  full  management  of  the 
defence.     And  we  need  hardly  add  that  he  may  compromise 

1  2  Bright  Hus.  &  Wife,  22  n.  ;  and  see  Stroop  v.  Swarts,  12  S.  &  R.  76. 

2  Reeve  Dom.  Rel.  72 ;  Barnes  v.  Harris,  Busbee,  15 ;  GriflBn  v.  Reynolds,  17 
How.  (U.  S.)  609.     See  Cassin  v.  Delany,  38  N.  Y.  178. 

3  Austin  V.  Wilson,  4  Gush.  273 ;  McQueen  v.  Fulgham,  27  Tex.  4G3 ;  Baker 
V.  Young,  44  111.  42 ;  Enders  v.  Beck,  18  Iowa,  86. 

4  Griffin  v.  Reynolds,  17  How.  (U.  S.)  609;  Roadcap  v.  Sipe,  6  Gratt.  213. 
See  Miller  v.  Sweitzer,  22  Mich.  891 ;  Tobey  v.  Smith,  15  Gray,  535.  For  a 
peculiar  state  of  facts,  see  Rowing  v.  Manley,  57  Barb.  479.  As  to  suits  to  recover 
usury,  see  Jackson  v.  Kirby,  37  Vt.  448 ;  Porter  v.  Mount,  45  Barb.  422.  And 
as  to  suit  for  the  conversion  of  stolen  millinery  by  the  wife,  see  Heckle  v.  Lur- 
vey,  101  Mass.  344. 

See  Gove  v.  Farmers',  &c.,  Ins.  Co.,  48  N.  H.  41,  where  a  liusband,  the  owner 
of  insured  buildings,  being  guilty  of  no  fraud  or  gross  negligence,  was  per- 
mitted to  recover  money  on  the  insurance  policy,  although  his  insane  wife  had 
set  the  buildings  on  fire. 

5  Austin  V.  Wilson,  4  Gush.  273. 

[106] 


WIFE'S   INJURIES   AND   FRAUDS.  *  104 

without  his  wife's  assent. ^  His  liability  lasts  so  long  as  the 
relation  lasts,  even  though  the  married  pair  he  permanently 
separated;  but  not  perhaps  if  the  wife  be  living  in  adultery 
at  the  time  the  wrong  was  committed.^  A  divorced  man  is 
not  liable  to  the  joint  action  for  a  tort  committed  during  mar- 
riage by  the  woman  from  whom  he  is  divorced.^ 

There  are  however  not  only  torts  simpliciter^  or  simple 
wrongs  at  law,  but  wrongs  where  the  substantive  basis  of  the 
fraud  is  the  wife's  contract.  The  common  law  has  been  sup- 
posed to  apply  with  the  same  force  in  both  cases,  partly 
because  in  the  latter  instance  the  person  injured  would  be 
otherwise  without  a  remedy.* 

This  point  came  directly  before  the  Court  of  Exchequer  in 
1854,  for  decision.  The  circumstances  of  the  case  were  as 
follows:  A  man  applied  for  a  loan  of  £30  to  a  loan  associa- 
tion, upon  the  security  of  a  promissory  note,  to  be 
signed  by  himself  *  and  sureties.  One  of  the  sureties  *  105 
was  a  married  woman  who  falsely  represented  herself 
to  the  association  as  single.  The  security  was  accepted  and 
the  loan  made.  Afterwards  the  loan  association,  recurring 
to  the  sureties  for  payment  of  the  note,  sought  to  make  her 
husband  liable  on  the  note,  alleging  her  fraud.  The  court 
decided  that  the  action  was  not  maintainable  ;  on  the  ground 
that  though  the  husband  is  liable  for  the  wife's  general  frauds, 
yet  when  the  fraud  is  directly  connected  with  her  contract, 
and  is  the  means  of  effecting  it  and  part  and  parcel  of  the 
same  transaction,  the  wife  cannot  be  responsil)le,  nor  can  the 
husband  be  sued  for  the  fraud  together  with  the  wife.^ 

But  there  are  cases  where  the  wife  will  bind  her  husband 
by  her  fraudulent  representations  on  the  ground  of  her  agency. 

1  Co()li(l<re  V.  Parris,  8  Ohio  St.  594. 

2  Head  V.  Briscoe,  5  Car.  &  P.  484. 

3  Capel  V.  Powell,  17  C.  B.  n.  s.  743. 

<  Macq.  Hus.  &  Wife,  130,  131 ;  Head  v.  Briscoe,  5  Car.  &  P.  484,  per  Tin- 
dal,  C.  J. ;  Reeve  Dom.  Rel.  72,  73. 

s  Liverpool  Adelplii  Loan  Association  v.  Fairhurst,  9  Exch.  422.  See  also 
Cooper  V.  Witliam,  1  Lev.  247 ;  Keen  v.  Hartman,  48  Penn.  St.  497  ;  Barnes  v. 
Harris,  Bu.sbee,  15 ;  Carleton  v.  Haywood,  49  N.  H.  314.  In  this  last  case  the 
wife  had  received  money  under  an  agreement  to  keep  or  loan  the  same  according 
to  her  judgment. 

[107] 


*  105  HUSBAND    AND   WIFE. 

Thus  in  Taylor  v.  Green  an  advertisement  appeared  in  a 
newspaper  oifering  for  sale  a  baker's  shop  with  the  good-will 
of  the  business,  and  misrepresenting  the  extent  of  the  busi- 
ness. It  did  not  appear  that  the  baker  took  any  part  in  the 
transaction,  further  than  to  receive  the  purchase-money  and 
pay  the  broker  his  commission.  The  court  held  nevertheless 
that  he  was  bound  by  the  fi-audulent  representations  of  his 
wife,  inasmuch  as  she  was  his  agent  in  managing  the  shop  and 
finding  a  purchaser,  and  that  he  must  respond  in  damages.^ 
Nor  is  the  doctrine  of  the  loan  association  case  as  yet  broadly 
applied.2 

The  husband  of  an  administratrix  or  executrix  is  lial)le  for 

her   devastavit^  or  other  wrongful   act  committed  before  or 

during  coverture,  if  his  liability  be  fixed  before  the  death  of 

the  wife.'^     And  if  she  survive  him,  her  appointment  having 

been  complete  in  all  respects,  she  becomes  liable  once 

*  106    more  ;  even  *  for  a  devastavit  committed  by  him  when 

alive.*  But  the  husband  cannot  be  sued  as  an  execu- 
tor de  son  tort  for  acts  of  his  wife  done  without  his  knowledge  ; 
though  it  is  otherwise  where  he  advises  or  aids  her  in  the 
commission  of  the  wrongful  acts ;  for  every  one  so  participat- 
ing becomes  a  principal.^ 

AVhere  there  is  no  collusion  apparent  a  husband  will  not  be 
committed  for  his  wife's  breach  of  injunction.^ 

For  injuries  to  the  person  or  character  of  the  wife,  the  hus- 
band and  wife  at  the  common  law  should  sue  together.^  But 
where  the  right  of  action  for  damages  is  founded  on  the  prior 
possession  of  personal  property,  the  husband  must  sue  alone  ; 

1  8  Car.  &  p.  316  ;  Macq.  Hus.  &  Wife,  127.  And  see  as  to  the  wife's  quasi 
criminal  act,  in  violation  of  tlie  excise  laws,  Attorney-General  i*.  Riddle,  2  Cromp. 
&  Jer.  49.3. 

•■i  See  Wright  v.  Leonard,  11  C.  B.  n.  s.  (1861)  2.58. 

3  2  Briglit  Hus.  &  Wife,  22-36,  and  cases  cited ;  Bobe  v.  Frowner,  18  Ala.  89. 

*  Soady  v.  Turnbull,  L.  K.  1  Ch.  494. 

5  Hinds  V.  Jones,  48  Me.  348.  The  wife  cannot  hold  such  offices  during  cov- 
erture independently  of  her  husband's  control,  as  we  shall  see  hereafter. 

^  Hope  f.  Carnegie,  L.  R.  7  Eq.  254.  For  statutory  changes  as  to  torts  and 
frauds  of  the  wife,  see  post,  p.  215. 

^  Bing.  Inf  &  Gov.  247,  Am.  ed.,  and  cases  cited. 

[108] 


WIFE'S   INJURIES   AND    FRAUDS.  *  106 

since  his  possession  is  the  possession  of  both.^  And  the  joinder 
of  the  wife  in  actions  rehiting  to  personal  property,  where  the 
injury  was  committed  after  marriage,  is  good  ground  of  de- 
murrer, or  motion  to  arrest,  or  even  of  error  after  judgment.^ 
Whether  the  same  principle  applies  to  property  of  the  wife 
parted  with  before  marriage  is  not  so  clear.  This  is  the  rule, 
however,  wdien  the  action  is  for  a  wTong,  which  before  the 
marriage  was  committed  in  respect  to  such  property.^  But 
where  the  trover  is  laid  before  the  marriage  and  the  conver- 
sion afterwards,  there  has  been  some  controversy,  the  result 
of  which  seems  to  be  that  the  action  is  well  brought,  either 
with  or  without  joining  the  wife.^  The  principle  sought  is 
whether  such  a  suit  amounts  to  a  disaffirmance  of  the  hus- 
band's constructive  title  to  the  goods  on  the  marriage.^ 

*  On  these  principles  it  is  held  that  husband  and  *  107 
wife  must  sue  together  for  slanderous  words  spoken 
against  the  latter.*^  Also  for  battery  of  the  wife.''  Also  for 
injuries  sustained  by  her  through  the  neghgence  of  a  common 
carrier.^  Also  for  the  malpractice  of  a  physician.^  Also  for 
frauds  upon  the  wife  ;  as  in  case  of  an  action  qui  tarn  to  re- 
cover penalties  for  a  fraudulent  conveyance.^'^     And  the  rule 

1  Bing.  Inf.  &  Gov.  2u3,  and' cases  cited;  Cro.  Eliz.  133;  1  Chit.  PI.  93;  1 
Salk.  114. 

2  Rawlins  i-.  Roujids,  27  Vt.  17. 

3  3  Hob.  Tract.  1«8  ;  xMilner  v.  Milnes,  3  T.  R.  627  ;  Fewell  v.  Collins,  1 
Const.  207. 

■*  Powes  t:  Marshal,  1  Sid.  172;  Ayling  v.  Wliicher,  G  Ad.  &  El.  259;  Black- 
Vjorne  v.  Ilaigli,  2  Lev.  107 ;  3  Rob.  Pract.  sitpva.  There  is  some  uncertainty  on 
this  point,  however.  See  Bac.  Abr.  Baron  &  Feme  (K-);  contra,  Brown  v. 
Fifield,  4  Mich.  322 ;  Wellborn  v.  Weaver,  17  Geo.  2G7.  The  better  course  is 
doubtless  to  join  the  wife.  As  to  suits  for  malicious  replevin  of  goods,  see 
O'Brien  o.  Barry,  lOG  Mass.  300. 

^  As  to  injuries  to  the  wife's  real  estate,  see  infra,  ch.  G. 

<>  Snialley  i-.  Anderson,  2  Monr.  5G  ;  Davies  v.  Solomon,  L.  R.  7  Q.  B.  112; 
Throgmorton  v.  Davis,  3  Blackf.  383.  These  words  must  be  actionable  per  se. 
See  Beach  v.  Ranney,  2  Hill,  309  ;  Saville  v.  Sweeney,  4  B.  &  Ad.  514  ;  Ryan 
V.  Madden,  12  Vt.  51.  As  to  malicious  prosecution,  see  Laughlin  v.  Eaton,  64 
Me.  154.  7  Pillow  V.  Bushnell,  5  Barb.  15G. 

8  Heirn  v.  McCauglian,  32  Miss.  17. 

9  Even  though  it  afterwards  cause  her  death.  Cross  v.  Guthery,  2  Root,  90; 
Hyatt  V.  Adams,  16  Mich.  180. 

1"  Fowler  i-.  Frisbie,  3  Conn.  320.  But  see  Crump  v.  McKay,  8  Jones,  32,  as 
to  negligence  "  sounding  in  contract,"  not  admitted  to  be  cause  of  action. 

[109] 


*  107  HUSBAND  AND  WIFE. 

is  the  same  in  all  these  cases,  whether  the  fraud  or  injury  was 
committed  before  or  during  coverture.  But  if  the  wife  be  a 
privy  to  the  wrong,  or  knowingly  suffers  an  injury  to  be  com- 
mitted upon  her,  the  husband  cannot  maintain  his  action  ;  for 
his  right  to  damages  cannot  be  greater  than  hers  would  have 
been,  had  she  remained  single.^  Nor  can  an  action  be  main- 
tained where  the  husband  instigates  the  wrong.^  In  a  joint 
action  for  personal  ^\Tong  to  the  wife,  the  declaration  should 
conclude  "  to  their  damage."  ^  And  it  is  a  well  recognized 
principle,  both  in  England  and  America,  that  whenever  the 
wife  is  the  meritorious  cause  of  action,  her  interest  must 
appear  on  the  face  of  the  pleaduigs  or  the  omission  will  be 
considered  fatal."^ 

The  damages  allowed  as  compensation  for  the  frauds  and 
injuries  sustained  by  the  wife  go  to  the  husband,  as  well  as 
the  rest  of  her  personal  property,  if  recovered  during  his  life- 
time. But  such  suits  survive  to  her  ;  and  on  the  death 
*  108  of  the  husband,  *  pending  legal  proceedings,  the  wife 
may  proceed  to  judgment  and  collect  the  damages  for 
herself ;  or  if  her  husband  had  never  brought  an  action,  she 
may  then  do  so  in  her  own  right.^  The  husband,  on  the  other 
hand,  has  no  such  interest  in  the  suit  at  common  law  that  he 
may  prosecute  it  in  his  own  name  after  his  wife's  death.  His 
joinder  in  the  first  place  was  only  because  of  the  marriage 
relation.  He  may,  however,  under  some  statutes,  be  let  in  as 
her  administrator,  and  in  such  capacity  prosecute  the  suit  to 
its  conclusion.^  If  the  wife  dies  after  judgment,  the  husband 
surviving  may  take  the  benefits  of  the  suit:  for  a  judgment 
debt  takes  the  place  of  the  original  cause  of  action.      The 

1  rillow  V.  Bushnell,  5  Barb.  156. 

2  Tibbs  V.  Brown,  2  Grant's  Cases,  39.  Nor  in  slander  wliere  the  words  are 
not  actionable,  though  the  wife  become  ill  in  consequence  of  tlie  slanders.  Wil- 
son V.  Goit,  17  N.  Y.  442. 

3  Horton  v.  Byles,  1  Sid.  387  ;  Smalley  v.  Anderson,  2  Monr.  56. 

*  Staley  v.  Barhite,  2  Caines,  221 ;  Serres  v.  Dodd,  5  B.  &  P.  405;  Thorne 
V.  Dillingham,  1  Denio,  254  ;  Pickering  i-.  De  Rochemont,  45  N.  H.  67. 

5  Bing.  Lif.  &  Gov.  247,  248 ;  Newton  v.  Hatter,  2  Ld.  Raym.  1208. 

6  Chitty  PI.  74;  Norcross  v.  Stuart,  50  Me.  87;  Pattee  v.  Harrington,  11 
Pick.  221 ;  Crozier  v.  Bryant,  4  Bibb,  174 ;  Saltmarsh  v.  Candia,  51  N, 
H.  71. 

[110] 


WIFE'S   INJURIES   AND   FRAUDS.  *  108 

death  of  the  wife,  pending  suit  for  her  personal  tort,  put  an 
end  to  the  action  altogether  by  the  old  law.^ 

Since  the  husband  is  at  the  common  law  entitled  to  the 
society  and  services  of  his  wife,  two  separate  causes  of  action 
may  arise  from  injuries  inflicted  upon  her  person.  One,  in 
the  name  of  both  for  her  own  injuries,  we  have  just  con- 
sidered ;  the  other  is  in  the  name  of  the  husband  alone  per 
quod  consortium  amisit?  Thus,  if  the  wife  be  wantonly 
bruised  and  maltreated,  her  husband  may  bring  his  special 
action  p^^r  quod  for  the  loss  of  her  society  and  his  medical 
expenses.  But  there  can  be  no  special  damage  recovered  by 
the  husband  by  way  of  aggravation  in  the  joint  suit  for  his 
wife's  injuries.  Thus,  if  the  action  be  for  an  assault  on  the 
wife,  the  surgeon's  bill  cannot  be  recovered ;  if  for  slander 
of  the  wife,  the  loss  of  wages  cannot  be  claimed  ;  there  the 
sole  right  of  tlie  husband  should  be  sued  for  in  his  name.^ 
It  would  appear  that  the  husband  may  release  the 
damages  for  *  his  wife's  injuries,  and  then  recover  for  *  109 
the  loss  arising  to  himself  alone.*  Of  the  suits  which 
the  husband  may  bring  for  loss  of  his  wife's  society,  that  for 
enticing  a  wife  away  has  already  been  considered.^  Some- 
what akin  to  this  is  his  action  for  his  wife's  seduction,  founded 
on  the  same  general  marital  rights.  But  the  common  law 
still  keeps  up  its  legal  fiction  of  the  wife's  civil  incapacity, 
and  treats  the  seducer  as  guilty  of  trespass  by  force  of  arms, 
whether  the  wife  actually  consent  to  the  guilt  or  not.^     The 

'  Bac.  Abr.  Baron  &  Feme  (K.). 

2  3  Bl.  Com.  140;  Cro.  Jac.  501;  ib.  538.  See  also  Brockbank  r.  White- 
haven Junction  R.  R.  Co.,  7  Hurl.  &  Nor.  834  ;  Whitconib  i'.  Barre,  37  Vt.  148 ; 
Kavanaugh  v.  Janesville,  24  Wis.  618  ;  Hooper  v.  Haskell,  56  Me.  251.  In 
Yundt  V.  Ilartrunft,  41  111.  9,  it  is  held  that  the  right  of  a  husband  to  sue  for  the 
seduction  of  his  wife  per  quod  is  not  defeated  by  her  death  before  action  brought. 

^  Dengate  v.  Gardiner,  4  M.  &  W.  6.  See  Lewis  v.  Babcock,  18  Johns.  443. 
An  action  cannot  be  in  general  maintained  by  the  wife,  there  being  no  mis- 
feasance towards  her  independently  of  a  contract  with  the  liu!<band  alone. 
Longmeid  v.  HoUiday,  6  Exch.  761. 

<  Southworth  v.  Packard,  7  Mass.  95.  One  who  knowingly  assists  a  wife  in 
violating  her  duty,  as  by  selling  her  laudanum,  may  be  sued  by  the  husband  for 
the  injury  he  sustains  thereby.     Hoard  i'.  Peck,  56  Barb.  202. 

5  Supra,  cli.  2. 

6  3  Bl.  Com.  139,  140.  An  action  on  the  case  is  allowable,  though  not  usual. 
Chamberlain  v.  Hazlewood,  5  M.  &  W.  617.     See  Morris  i'.  Miller,  4  Burr.  2057 ; 

[111] 


*  109  HUSBAND   AND   WIFE. 

damages  which  the  husband  may  here  recover  in  his  own 
right  are  not  affected  by  the  social  rank  or  condition  of  the 
parties ;  ^  nor  by  his  own  character,  save  his  character  as  a 
husband;^  but  they  may  be  materially  influenced  by  the 
wife's  previous  character  for  chastity;^  while  if  the  husband 
be  privy  to  the  crime  or  consenting  thereto,  the  law  treats 
him  as  the  seducer,  and  gives  him  no  damages.*  But  the 
earlier  cases  seem  to  have  regarded  this  last  circumstance  as 
tending  only  to  reduce  his  compensation.^  A  husband  who 
lives  apart  from  his  wife,  under  articles  of  separation  or  a 
decree  of  divorce  from  bed  and  board,  cannot  maintain  a  suit 
for  damages  j^er  quod,  since  he  has  suffered  no  loss  of  her 
society.^ 

*  110        *  Instantaneous  death  of   the  husband  or  wife  at 

the  common  law  gave  no  right  of  action  to  the  sur- 
vivor. Nor  could  the  husband,  whose  wife  was  thus  killed  by 
another's  carelessness,  sue  per  quod,  because  he  could  not  be 
said  to  have  lost  her  society  during  any  portion  of  her  life.''' 
The  wife,  of  course,  was  never  permitted  to  sue  for  the  loss 

Birt  V.  Barlow,  Doug.  171;  Freelaconey  ;■.  Coleman,  1  B.  &  Aid.  90;  Cane- 
field  V.  Chamber,  6  East,  244  ;  Toner.  Sumners,  2  Nott  &  McCord,  267 ;  Forney 
V.  Hallaker,  8  S.  &  R.  159.  See  Yundt  v.  Hartrunft,  41  111.  9,  as  to  the  damages 
allowable  in  such  cases.    A  broad  rule  is  here  announced  in  tlie  liusband's  favor. 

I  Norton  v.  Warner,  9  Conn.  172;  per  Cheves,  J.,  in  Buford  v.  McLung, 
1  Nott  &  McCord  268,  277  ;  otherwise,  according  to  Blackstone.  See  3  Com. 
140. 

*  Norton  v.  Warner,  9  Conn.  172.     And  see  Bromley  v.  Wallace,  4  Esp.  237. 

3  3  Bl.  Com.  140;  Bull.  N.  P.  296.  Blackstone  (ib.)  adds  the  consideration 
of  the  husband's  obligation,  by  settlement  or  otherwise,  to  provide  for  those 
children  which  he  cannot  but  suspect  to  be  spurious. 

•*  1  Greenl.  Evid.  §  678;  Duberly  v.  Gunning,  4  T.  R.  6-51,  per  Lord  Ken- 
yon  ;  Rea  v.  Tucker,  51  111.  110 ;  Reeve  Dom.  Rel.  64  ;  Train  i-.  Bayer,  24  Barb. 
614,  and  cases  cited.     See  Lord  Alvanley,  in  Bromley  v.  Wallace,  4  Esp.  237. 

6  Selw.  N.  P.,  Adultery;  Bull.  N.  P.  27. 

<*  Reeve  Dom.  Rel.  64;  Fry  v.  Derstler,  2  Yeates,  278.  The  husband  may 
discharge  the  cause  of  action,  so  as  to  bar  the  wife's  remedy,  even  though  they 
are  living  apart  through  his  fault.  Ballard  v.  Russell,  33  Me.  196.  Concerning 
the  effect  of  a  separation  pending  a  suit  brought  in  the  joint  names  of  liusband 
and  wife,  for  injuries  inflicted  upon  the  latter,  see  Burger  v.  Belsley,  45  111.  72. 

1  Yelv.  89,  90  ;  Baker  v.  Bolton,  1  Camp.  493 ;  Green  v.  Hudson  R.  R.  Co., 
28  Barb.  9  ;  Hallenbeck  v.  Berkshire  R.  R.  Co.,  9  Cush.  109.  See  Georgia  R.  R. 
Co.  V.  Wynn,  42  Geo.  331.  A  wife  dying  in  consequence  of  malpractice,  the 
husband  recovers  damages  for  tlie  injury  accrui"g  to  himself  before,  but  not 
for  the  injury  in  consequence  of,  the  death.     Hyatt  v.  Adams,  16  Mich.  180. 

[112] 


WIFE'S  INJURIES   AND   FRAUDS.  *110 

of  her  husband's  society  and  services,^  though  on  general 
principle  it  is  hard  to  see  whj,  save  for  her  "  coverture,"  she 
should  not  have  been.  Modern  legislation  has  supplied  many 
new  remedies  much  needed  in  these  classes  of  cases,  par- 
ticularly with  reference  to  injuries  and  loss  of  life  occasioned 
through  the  carelessness  of  railroad  companies  and  other 
common  carriers.^  And  wherever  by  special  statute  some 
right  of  action  for  damages  is  given  (as  against  a  town  for  a 
defective  highway),  some  of  our  courts  seem  disposed  to  allow 
the  husband's  medical  expenses  by  way  of  aggravation,  in  the 
joint  suit  of  husband  and  wife,  even  though  he  may  not  be 
empowered  to  bring  a  suit  in  his  own  name  to  recover  for 
them  as  dam-ages  per  quod.^ 

It  should  be  finally  observed  that  wherever  husband  and 
wife  are  both  injured  they  have  two  distinct  and  separate 
causes  of  action,,  which  must  not  be  confounded.  Thus  for 
libel  against  husband  and  wife,  the  husband  must  sue  alone 
for  the  libel  against  him ;  and  husband  and  wife  jointly  for 
the  libel  against  her ;  they  cannot  sue  together  for  the  libel 
against  both.^ 

1  2  Kent  Com.  182  ;  Carey  v.  Berkshire  R.  R.  Co.,  1  Cush.  475.  See,  as  to 
survivorship,  Waldo  v.  Goodsell,  33  Conn.  432;  Long  v.  Morrison,  14  Ind.  595. 

2  Dickens  v.  N.  Y.  Central  R.  R.  Co.,  28  Barb.  41  ;  Stat.  9  &  10  Vict.  c.  93  ; 
Mass.  Gen.  Stats,  c.  63,  §  97. 

3  Harwood  v.  Lowell,  4  Cush.  310 ;  Sanford  v.  Augusta,  32  Me.  536  ;  Fuller 
V.  Naugatuck  R.  R.  Co.,  21  Conn.  657.  But  see  Kavanaugh  v.  Janesville,  24 
Wis.  618 ;  Whitconih  v.  Barre,  37  Vt.  148.  See  Carlisle  v.  Town  of  Slieldon, 
38  Vt.  440,  as  to  right  defeated  by  husband's  own  carelessness,. 

*  Gazynski  v.  Colburn,  11  Cush.  10 ;  EbersoU  v.  King,  3  Binn.  555;  New- 
ton V.  Hatter,  2  Ld.  Raym.  1208.  For  statutory  changes  as  to  injuries  sustained 
by  the  wife,  see  post,  p.  215.  See  further,  as  to  consolidating  actions  in  some 
instances,  Ilemstead  v.  Gas  Light  Co.,  3  Hurl.  &  C.  745. 

8  [  113  ] 


*  1 1 1  HUSBAND  AND  WIFE. 


*111  *  CHAPTER  V. 

THE  EFFECT  OF  COVERTURE  UPON  THE  WIFE'S  PERSONAL 
PROPERTY. 

Personal  property  comprises  things  in  possession,  or  goods 
and  effects,  such  as  money,  furniture,  and  farm  stock,  which 
one  holds  as  the  property  itself,  and  things  in  action,  such  as 
bonds  and  other  outstanding  debts.^  The  husband's  title  to 
his  wife's  personal  property  at  the  common  law  is  either 
absolute  or  qualified,  according  as  the  particular  property 
belongs  to  the  one  class  or  the  other.  We  shall,  therefore, 
in  this  chapter,  treat  of,  firsts  the  wife's  things  or  personal 
property  in  possession ;  second,  her  things  or  personals  in 
action. 

But  in  general  it  may  be  premised  that  the  wife's  personal 
property  goes  to  the  husband,  whether  belonging  to  her 
at  the  time  of  marriage,  or  acquired  afterwards  by  gift,  be- 
quest, or  purchase ;  whether  actually  or  beneficially  possessed ; 
whether  principal  fund  or  income.  So  her  earnings  belong 
to  her  husband.  Marriage,  therefore,  operates  in  this  respect 
as  a  gift  to  the  husband,  and  while  the  gift  is  only  qualified, 
so  far  as  things  in  action  are  concerned,  it  lies  in  his  power  to 
make  the  gift  absolute  during  coverture.^ 

This  privilege  of  the  husband  lasts  as  long  as  the  marriage 

relation  continues  ;  even  though  he  be  living  apart  from  his 

wife  in  adultery,  and  she  acquire  the  property  by  her 

*  112    own  labor.^      *  Neither  divorce  from  bed  and  board, 

1  2  Bl.  Com.  389,  396;  2  Kent  Com.  35L  See  Schouler  Pers.  Prop.  32-37, 
where  the  leading  distinctions  between  "  things  in  possession  "  and  "  things  in 
action"  are  noticed  at  length,  and  where  reasons  are  stated  why  the  terms 
"  corporeal  "  and  "  incorporeal  "  personal  property  should  be  preferred  at  this 
day. 

2  1  Bright  Hus.  &  Wife,  34,  35;  Co.  Litt.  305  a,  351  6  ;  2  Kent  Com.  130,  &c. 
'  Russell  V.  Brooks,  7  Pick.  65  ;  Turtle  v.  Muncy,  2  J.  J.  Marsh.  82;  Arm- 
strong V.  Armstrong,  32  Miss.  279. 

[lUj 


I 


WIFE'S  PERSONAL  PROPERTY.  *  112 

nor  separation,  takes  away  his  right.^  But  divorce  from 
the  bonds  of  matrimony,  or  the  death  of  either  party,  puts  an 
end  to  the  gifts  of  coverture,  leaving  open  the  adjustment 
of  the  rights  of  the  respective  parties  with  one  another,  or 
between  the  survivor  and  the  representatives  of  the  deceased, 
on  other  principles  to  be  hereafter  explained. 

And  it  is  a  matter  of  course  that  the  wife's  property  should 
be  hers  in  her  own  right,  in  order  that  the  husband's  title 
may  attach.  For  j)roperty  may  come  to  her  with  restrictions 
upon  the  husband's  rights,  such  as  the  giver  has  seen  fit  to 
impose.^  Her  paraphernalia  follow  a  rule  somewhat  peculiar.^ 
And,  as  we  shall  see  in  other  chapters,  much  of  the  common 
law  bearing  upon  this  subject  is  practically  superseded  by  the 
law  of  the  wife's  separate  property. 

Earnings  of  the  wife  belong  to  the  husband.  The  rule  of 
the  common  law  is  that  he  takes  all  the  benefits  of  her  in- 
dustry.'^ He  alone  can  give  a  discharge  for  any  demand 
which  may  arise  from  her  services.  He  may  of  course  con- 
stitute her  his  agent  for  receiving  the  pay  to  herself;  but, 
without  evidence  of  some  such  authority,  the  person  who 
employs  her,  as  a  nurse  for  instance,  cannot  protect  himself 
by  showing  her  separate  receipts.^ 

First,  then,  as  to  the  wife's  chases  or  personals  in  possession. 
To  these  the  husband's  right  at  common  law  is  immediate 
and  absolute.  He  may  dispose  of  them  as  he  sees  fit  during 
his  life,  whether  with  or  without  his  wife's  consent ;  he  may 
bequeath  tliem  hy  w;ll ;  and  after  his  death  such  property  is 
regarded  as  assets  of  his  estate,  the  title  passing  to  his  execu- 

1  Glover  v.  Proprietors  of  Drury  Lane,  2  Cliitty,  117 ;  Washburn  v.  Hale,  10 
Pick.  429  ;  Prescott  v.  Brown,  23  Me.  3U5 ;  1  Roll.  Abr.  34H.  But  see  Divorce, 
infra . 

2  Co.  Litt.  351 ;  11  Mod.  178.  3  See  infra,  cli.  8. 

4  Macq.  Has.  &  Wife,  44,  45 ;  Reeve  Dom.  Rel.  63. 

5  Offley  V.  Clay,  2  Man.  &  Gr.  172;  and  see  Glover  v.  Drury  Lane,  2  Chitt. 
117;  Russell  v.  Brooks,  7  Pick.  05;  but  see  Starrett  r.  Wynn,  17  S.  &  R.  130; 
Cramer  v.  Bedford,  2  C.  E.  Green,  3G7.  For  these  earnings  he  sues  in  his  own 
name.  Gould  v.  Carlton,  55  Me.  511.  See  chapter  13,  on  the  wife's  right  to 
trade.  AVe  do  not  here  speak  of  cases  where  articles  of  separation  between 
husband  and  wife  provide  a  different  disposition  of  her  earninijs. 

[  115  ] 


*  1 1 2  HUSBAND   AND   WIFE. 

tors  and  administrators,  to  the  exclusion  of  the  wife,  though 
she  survive  him.^ 

If  the  wife's  interest  in  personal  property  be   that   of  a 

tenant  in  common,  the  husband  becomes  a  tenant  in  common 

in  her  stead.-     So  corporeal  chattels  of  a  female  ward,  in  the 

hands  of  her  guardian,  being  legally  hers  at  the  time 

*  113    of  marriage,  become  *  her  husband's,  and  his  marital 

rights  attach  at  once,  notwithstanding  the  guardian 
retains  possession  longer.^  The  wife's  vested  remainder  in 
pergonal  estate  goes  to  the  husband  on  termination  of  the 
particular  estate ;  and  where  both  husband  and  wife  die 
during  the  continuance  of  the  particular  estate,  the  husband's 
representatives,  and  not  the  wife's,  are  held  to  take  such  re- 
mainder.^ But  the  husband  cannot  be  considered  a  purchaser 
by  marriage  for  a  valuable  consideration  against  a  legal  title 
admitted  to  be  valid  by  his  wife  before  marriage.^ 

Chattels  bequeathed  to  the  wife,  without  restriction,  pass  to 
the  husband  at  once  like  her  other  things  in  possession.^  So 
all  her  movables,  such  as  jewels,  household  goods,  and  the 
like,  also  cash  in  her  hands,  go  to  him  absolutely  and  at  once, 
whether  owned  by  the  wife  at  the  time  of  marriage  or  nomi- 
nally vesting  in  her  at  some  period  of  her  coverture.  Whether 
money  at  her  banker's  follows  the.  same  principle  may  depend 
upon  a  distinction  first  taken  by  Sir  William  Grant  in  Carr  v. 
(Jarr?  He  there  says  that  a  balance  at  a  banker's  is  a  debt 
and  not  a  deposit.  But  if  the  money  were  delivered  to  the 
banker  in  a  sealed  bag,  it  would  then  be  truly  a  depositum. 

1  Co.  Litt.  800,  851  6  ;  2  Kent  Com.  143  ;  Legg  v.  Legg,  8  Mass.  99  ;  Lamphir 
V.  Creed,  8  Ves.  599;  Winslow  v.  Crocker,  17  Me.  29;  Bing.  Inf.  &  Cov.  208, 
cases  cited  by  Am.  ed. ;  Hoskins  v.  Miller,  2  Dev.  360 ;  Hyde  v.  Stone,  9  Cow. 
230 ;  Morgan  v.  Thames  Bank,  14  Conn.  99 ;  Hawkins  v.  Craig,  6  Monr.  257 ; 
(^affee  v.  Kelly,  1  Busb.  48;  Skillman  v.  Skillman,  2  Beasley,  403;  Hopkins  i'. 
Carey,  23  Miss.  54 ;  Cropsey  v.  McKlnsey,  30  Barb.  47  ;  Carleton  v.  Lovejoy, 
54  Me.  445. 

2  Hopper  V.  McWhorter,  18  Ala.  229. 

s  Sallee  v.  Arnold,  32  Mis.  532  ;  Chambers  v.  Perry,  17  Ala.  726  ;  McDaniel 
V.  Whitman,  16  Ala.  343;  Miller  v.  Blackburn,  14  Ind.  62.  See  Davis'  Appeal, 
60  Penn.  St.  118. 

*  Tune  V.  Cooper,  4  Sneed,  296.  »  Willis  v.  Snelling,  6  Rich.  280. 

6  Shirley  v.  Shirley,  9  Paige,  368 ;  Newlands  v.  Paynter,  4  M.  &  C.  408 ; 
Crane  v.  Brice,  7  M.  &  W.  183;  Eex  v.  French,  R.  &  R.  C.  C.  491. 

7  1  Mer.  543,  n. 

[116] 


WIFE'S  PERSONAL  PROPERTY.         *  113 

It  would  then  have  what  is  called  an  ear-mark.  In  other 
words,  it  would  be  a  specific  chattel,  and,  as  such,  would 
vest  by  the  marriage  in  the  husljand  as  his  absolute  propertj'.^ 
Therefore,  should  the  husband  die  without  recovering  such 
specific  chattels  or  goods,  they  would  belong  to  his  represent- 
atives, and  not  to  the  wife  by  right  of  survivorship. ^ 
The  true  test  of  the  husband's  *  title  is  this:  whether  *  114 
the  personal  property  in  question  was  or  was  not 
technically  a  thing  in  possession. 

Secondly.  The  husband's  right  to  his  wife's  incorporeal 
personal  property  —  or  at  least  to  her  choses  in  action^  as  they 
are  commonly  called — is  qualified.  Marriage  operates,  not 
as  an  absolute  gift  of  such  property,  but  rather  as  a  condi- 
tional gift ;  the  condition  being  that  the  husband  shall  do 
some  act,  while  coverture  lasts,  to  appropriate  the  choses  to 
himself.  If  he  happen  to  die  before  he  has  done  so,  such 
cJioses,  not  having  been  reduced  to  possession,  remain  the 
property  of  the  wife,  and  his  personal  representatives  have 
no  title  in  them.^  But  this  applies  only  to  outstanding 
things  in  action ;  for  some  may  have  been  reduced  to  i)osses- 
sion  by  the  husband  during  his  lifetime,  and  some  may  not. 
If  the  wife  die  before  the  husband  has  reduced  the  chose 
to  possession,  he  has  no  title  in  it,  as  husband,  but  it  goes, 
strictly  speaking,  to  her  administrator  or  personal  representa- 
tive.'* 

With  respect  to  such  choses  in  action  as  may  accrue  to  the 
wife  solely,  or  to  the  husband  and  wife  jointly,  during  cover- 
ture, the  same  doctrine  applies.  The  husband  may  disagree 
to  his  wife's  interest  and  make  his  own  absolute  at  any  time 
during  coverture,  by  recovering  in  suit  in  his  own  name  or 

1  Per  Sir  William  Grant,  in  Carr  v.  Carr,  1  Mer.  543 ;  Kill  t'.  Foley,  1  Pliill. 
404.     See  Pott  v.  Clejig,  11  Jur.  289. 

3  Powes  V.  Marsliall,  1  Sid.  172 ;  Macq.  Hus.  &  Wife,  19.  20  ;  1  Bac.  Abr.  700, 
tit.  Baron  &  Feme,  V. ;  1  Roper  Hus.  &  Wife,  169 ;  1  Vent.  2(51. 

3  Co.  Litt.  351  ;  1  Bright  Hus.  &  Wife,  3G  ;  2  Kent  Com.  135  <>(  seq.,  and  cases 
cited;  Scawen  v.  Blunt,  7  Ves.  294;  Langliam  v.  Nenny,  3  Ves.  467;  Tritt  v. 
Colwell,  31  Penn.  St.  228;  Needles  v.  Needles,  7  Ohio  St.  432;  Burleigh  v.  Cof- 
fin, 2  Fost.  118. 

*  Wa  lar  v.  Walker,  41  AJa.  353. 

[117] 


*  114r  HUSBAND  AND  WIFE. 

otherwise  reducing   them   to   possession.     But    until 

*  115    such  disagreement,  *  such  choses  in  action  belong  to 

the  wife,  and,  if  not  reduced  into  possession  by  the 
husband,  will  likewise  survive  to  her.^ 

It  becomes  important,  therefore,  to  distinguish  the  wife's 
things  in  action  from  her  things  in  possession.  To  the  class 
of  things  in  action  belong  such  property  as  rests  upon  oljliga- 
tion,  contract,  or  other  security,  for  payment ;  and  not  only 
rights  presently  vested  and  capable  of  immediate  reduction  to 
possession,  but  those  which  are  contingent  upon  some  event 
or  reversionary  upon  some  prior  interest.^  Debts  owing  the 
wife,  arrears  of  rents,  of  profits,  and  of  income,  also  out- 
standing loans,  are  plainly  choses  in  action.^  Money  due  on 
mortgage  is,  before  foreclosure,  a  chose  in  action,  and  even 
though  lent  before  coverture  with  covenants  running  to  the 
wife's  heirs  or  executors,  it  must  follow  the  usual  rule.*  So 
are  bonds  and  certificates  of  stock.^  Income  of  a  chose  in 
action  is  as  much  a  chose  as  the  principal  itself;  and  accord- 
ing to  the  ordinar}^  rule  the  wife  becomes  entitled  to  it  by 
survivorship.*^  A  devise  of  land  to  be  sold  and  proceeds  to 
be  divided  among  certain  persons,  gives  to  each  a  chose  in 
action.''  Bills  of  exchange  and  promissory  notes,  unlike 
other  choses  in  action  in  being  legally  transferable  by  simple 
indorsement,  are  now  considered  choses  in  actiori  of  a  peculiar 
nature,  though  it  was  formerly  thought  that  they  vested 
absolutely  in   the  husband  by  marriage ;  ^   and  bank 

*  116    checks  and  public  securities  of  a  *  negotiable  charac- 

1  Coppin  V. ,  2  p.  Wms.  497  ;  Day  v.  Padrone,  2  M.  &  S.  396,  n. ;  Howell 

V.  Maine,  3  Lev.  403 ;  Wildman  v.  Wiklman,  9  Ves.  174  ;  1  Bright  Hus.  &  Wife, 
37  ;  2  Kent  Com.  135,  and  cases  cited  ;  Wilkinson  v.  Charlesworth,  11  Jur.  644; 
Standeford  v.  Devol,  21  Ind.  404.     See  also  clis.  7,  8. 

^  See  Bell  Hus.  &  Wife,  52. 

3  1  Brirrlit  Hus.  &  Wife,  36 ;  Clapp  v.  Stoughton,  10  Pick.  463. 

*  Bell  IIus.  &  Wife,  52;  contra.  Turner  r.  Crane,  1  Vern.  170;  Rees  i'.  Keith, 
11  Sim.  388.  ^  Slaymaker  v.  Bank,  10  Penn.  St.  373. 

•>  Wilkinson  v.  Charlesworth,  11  Jur.  644. 

7  Srailie's  Estate,  22  Penn.  St.  130.     And  see  Wells  v.  Tyler,  5  Fost.  340. 

8  Caters  v.  Maddeley,  6  M.  &.W.  423;  Nash  v.  Nasli,  2  Madd.  133  ;  1  Roper 
Hus.  &  Wife,  211 ;  1  Bright  Hus.  &  Wife,  37  a,  38;  Richards  v.  Richards,  2  B. 
&  Ad.  447 ;  Scarpellini  v.  Acheson,  7  Q.  B.  864 ;  9  Jur.  827 ;  Phelps  v.  Phelps, 
20  Pick.  556  ;  Hay  ward  v.  Hayward,  ib.  525;  Lend^rman  v.  Talley,  1  Houst.  523. 

[118] 


WIFE'S  PERSONAL  PROPERTY.         *  116 

ter  may  be  placed  in  the  same  class.  Legacies  and  distrib- 
utive shares  are  sometimes  treated  as  though  they  vested 
absolutely  in  the  husband  without  reduction  into  possession  ; 
but  unquestionably  the  better  opinion  is  tliat  they  are  chases 
in  action,  in  which  case  the  creditor  of  tlie  husljand  ought 
not  to  be  allowed  to  attach  them  before  the  latter  has  done 
some  act  disaffirming  his  wife's  title.^  The  wife's  choses  in 
action  must  not  be  confounded  with  her  goods  or  specific 
chattels  in  the  hands  of  third  parties,  which,  unlike  her 
choses  in  action,  vest  in  the  husband  absolutely  by  the  mar- 
riage.^ 

What  acts  on  the  husband's  part  amount  to  an  appropria- 
tion of  his  wife's  choses  in  action,  or  in  other  words  consti- 
tute reduction  into  possession  so  as  to  bar  her  rights  by 
survivorship,  may  here  be  fitly  considered.  Mere  intention 
on  his  part  is  not  sufficient.  The  purpose  must  be  followed 
by  some  positive  act  asserting  an  ownership.^ 

Nor  is  actual  possession  of  the  chose  in  action  a  sufficient 
reduction  2)er  se,  for  the  husband's  intention  may  be  to  hold  it 
in  the  right  of  another.  Thus  he  may  take  the  property  in 
trust  for  his  wife ;  and  if  so  he  is  accountable  like  any  other 
trustee.'*  So  he  may  receive  it  as  a  loan  from  his  wife,  in 
which  case  he  shall  refund  it  like  any  other  borrower. 
That   reduction   *  into    possession    which   makes   the    *  117 

1  2  Kent  Com.  135 ;  cases  cited  in  Am.  editor's  notes  to  Bing.  Inf.  &  Gov.  209  ; 
Carr  v.  Taylor,  10  Ves.  Jr.  574,  578  ;  Lampliir  v.  Creed,  8  ib.  599 ;  Palmer  v. 
Trevor,  1  Vern.  261.  See  Schuyler  v.  Hoyle,  5  Johns.  Ch.  196  ;  Curry  v.  f  ulk- 
inson,  14  Ohio,  100 ;  Wheeler  v.  Moore,  13  N.  H.  478  ;  Harper  v.  Archer, 
8  Sm.  &  M.  229;  Probate  Court  v.  Niles,  32  Vt.  775;  Chappell  v.  Causey,  11 
Geo.  25 ;  Gillete  v.  Camp,  19  Mis.  404 ;  Johnson  v.  Spaight,  14  Ala.  27  ;  Gallego 
V.  Gallego,  2  Brock.  285 ;  Revel  v.  Revel,  2  Dev.  &  Batt.  272 ;  Wallace  v.  Tallia- 
ferro,  2  Call,  447 ;  Clifton  v.  Haig,  4  Des.  330.  See  contra,  Albee  v.  Carpenter, 
12  Cush.  382  ;  Wheeler  v.  Bowen,  20  Pick.  563  ;  Griswold  v.  Penniman,2  Conn. 
564  ;  Holbrook  v.  Walters,  19  Pick.  354.  But  even  in  Massachusetts,  where  the 
doctrine  prevails  which  is  disapproved  in  tiie  text,  it  is  held  that  if  the  husband 
die  before  judgment  in  the  suit  by  creditors,  his  wife's  survivorship  is  not  barred. 
Strong  V.  Smitii,  1  Met.  476.     See  also  Parks  v.  Cushman,  9  Vt.  320. 

2  See  supra,  p.  Ill,  n.  1 ;  Schouler  Pers.  Prop.  32-37. 

3  Blount  V.  Bestland,  5  Ves.  Jr.  515. 

*  Baker  v.  Hall,  12  Ves.  Jr.  497  ;  Estate  of  Hinds,  5  Whart.  138  ;  Mayfield  v. 
Clifton,  3  Stew.  375 ;  Resor  i-.  Resor,  9  Ind.  347 ;  Bell  Hus.  &  Wife,  57.  See 
Dunn  V.  Sargent,  101  Mass.  336. 

[119] 


*  1 1 7  HUSBAND  AND   WIFE. 

cliose  absolutely  as  well  as  potentially  the  liusband's,  is  a 
reduction  into  possession,  not  of  the  thing  itself,  but  of 
the  title  to  it.^  Constructive  possessions  are  not  favored  in 
law  when  they  tend  to  defeat  the  wife's  survivorship.  Yet 
reduction  into  possession  of  the  wife's  cliose  in  action^  unex- 
plained by  other  circumstances,  is  prima  facie  evidence  of 
coiiversion  to  the  husband's  use,  and  is  therefore  effectual.^ 

The  receipt  of  the  husband  and  wife  jointly  for  the  wife's 
chose  in  action  does  not  constitute  sufficient  reduction  by  the 
husband,  for  this  is  the  proper  form  of  receipt  given  to  third 
parties  when  the  fund  is  placed  in  the  wife's  hands. ^  But  the 
sole  receipt  of  the  husband  with  intent  to  appropriate  consti- 
tutes a  complete  reduction,  the  property  having  been  dehv- 
ered  to  him  instead  of  the  wife.* 

It  is  clear  that  the  receipt  of  interest  due  on  a  bond  or  note 
is  not  a  sufficient  reduction  of  the  latter,  nor  of  future  instal- 
ments, although  it  constitutes  a  reduction  of  the  particular 
interest  instalment  itself.^  The  same  principle  applies  to  the 
conversion  of  stock  dividends.  Nothing  short  of  the  transfer 
of  stock  standing  in  the  Avife's  name  to  the  husband's  name 
seems  to  be  a  sufficient  reduction  of  the  stock  into  posses- 
sion.*^ 

Since  stock  which  stands  in  the  wife's  name  does  not  belong 
to  her  husband  until  reduced  to  possession  by  him,  it  follows 
that  he  cannot  be  made  personally  liable  in  respect  to  the 
fund  where  he  has  failed  to  so  reduce  it." 

As  to  bills  and  notes,  there  is  a  conflict  between  the 

*  118    earlier  *  and  later  cases,  from  the  fact  that  negotiable 

instruments  were  not  formerly  regarded  as  cJioses  in 

1  Strong,  J.,  in  Tritt's  Admr.  v.  Caldwell's  Admr.,  31  Penn.  St.  233. 

2  Johnston  v.  Johnston,  1  Grant  Cas.  468.  Lnpse  of  time  may  raise  a  pre- 
sumption of  reduction  in  the  husband's  favor.     Harper  v.  Archer,  28  Miss.  212. 

3  Timbers  v.  Katz,  6  W.  &  S.  290. 

*  Roll.  Abr.  312,  350 ;  1  Bright  IIus.  &  Wife,  53 ;  Lowe  v.  Cody,  29  Geo. 
117. 

5  Howman  v.  Corrie,  2  Vern.  190  ;  Hart  v.  Stephens,  6  Q.  B.  937  ;  Stanwood 
V.  Stanwood,  17  Mass.  57  ;  Burr  v.  Sherwood,  8  Bradf.  Sur.  85. 

6  Arnold  v.  Ruggles,  1  R.  I.  165 ;  2  Bright  Hus.  &  Wife,  54 ;  Slaymaker  i;. 
Bank,  10  Penn.  St.  373. 

^  Dodgson  V.  Bell,  3  E.  L.  &  Eq.  542.  And  see  Matter  of  Reciprocity  Bank, 
22  N.  Y.  9. 

[120] 


WIFE'S  PERSONAL  PROPERTY.  *  118 

action  at  all.^  Assuming  them  to  be  such,  however,  the 
indorsement  and  transfer  of  the  husband  is  a  sufficient  reduc- 
tion into  possession.  Hence,  if  a  note  be  made  payable  to 
the  order  of  a  feme  sole,  and  she  afterwards  marries,  her  hus- 
band may  transfer  the  note  to  himself  or  others  by  his  own 
indorsement.^  The  receipt  of  partial  payment,  it  would  seem, 
is  only  a  reduction  pro  tanto.^  The  wife  cannot  indorse  over 
a  note  payable  to  her  order,  even  with  authority  from  her 
husband,  where  it  does  not  appear  that  the  indorsement  was 
made  for  value  received  by  the  husband  from  the  indorsee,  or 
as  a  gift  from  the  husband  to  the  indorsee  ;  if  she  does  so,  it 
does  not  bar  her  rights  by  survivorship.*  Her  indorsement 
without  his  assent  is  prima  facie  bad.^  If  a  note  be  not 
negotiable,  the  husband  alone  can  transfer  it.^  A  note  made 
payable  to  order  of  "A.  B.  (a  married  woman),  or  to  A.  B. 
and  her  husband"  in  the  alternative,  constitutes  the  husband 
the  payee.'''  What  evidence,  irrespective  of  indorsement  and 
transfer  by  the  husband,  suffices  to  show  reduction  into  pos- 
session —  as  for  instance  where  the  note  is  payable  to  bearer — 
is  not  quite  clear  from  the  authorities.  But  reduction  of  the 
wife's  notes  into  possession  is  not  effected  by  the  husband, 
merely  because  he  keeps  them  for  safety  and  at  her  request, 
with  his  own  papers ;  nor  does  the  fact  that  her  whole 
property  *  consisted  of  such  notes,  and  that  at  her  re-  *  119 
quest  and  because  they  were  not  due,  he  provided  the 
wedding  dress  and  furnished  the  house,  give  the  husband  a 


1  See  Scarpellini  v.  Acheson,  7  Q.  B.  864 ;  9  Jur.  827  ;  Gaters  v.  Maddeley, 
6  M.  &  W.  423 ;  McXeilage  v.  IToIloway,  1  B.  &  Aid.  218  ;  Sherrington  v.  Yates, 
12  M.  &  W.  855 ;  1  Pars.  Bills  &  Notes,  87.  If  a  note  be  payable  to  husband 
and  wife,  it  would  clearly  su;  vive  to  the  latter.  Richardson  r.  Daggett,  4  Vt. 
336 ;  Draper  v.  Jackson,  16  Mass.  480.  See  also  post,  as  to  gifts  to  husband  and 
wife. 

2  Mason  v.  Morgan,  2  Ad.  &  El.  30 ;  Evans  v.  Secrest,  3  Ind.  545.  And  the 
wife's  signature  is  mere  surplusage  where  both  indorse  the  note.    lb. 

3  Nash  V.  Nash,  2  Madd.  133. 

*"  Scarpellini  v.  Acheson,  7  Q.  B.  864. 

^  Wall  V.  Tomlinson,  16  Ves.  Jr.  413 ;  Ilemmingway  v.  Matthews,  10  Tex. 
207  ;  Tryon  v.  Sutton,  13  Cal.  490. 

8  Evans  v.  Secrest,  3  Ind.  545. 

"^  Wildman  v.  Wildman,  9  Ves.  Jr.  174 ;  Twisden  v.  Wise,  1  Vern.  161 ;  Ry- 
land  V.  Smith,  1  M.  &  C.  53. 

[121] 


*119  HUSBAND   AND   WIFE. 

lien  upon  them,  or  amount  to  a  reduction. ^  A  collection  of 
the  wife's  notes  would  be  a  reduction  into  possession  ;  and  so 
perhaps  would  be  transfer  and  delivery,  with  intent  to  pass 
the  propert3^ 

Reduction  into  possession  is  not  necessarily  affected  by 
delivery  into  the  husband's  hands  of  a  cliose  in  action;  for 
the  intent  of  the  parties  at  the  time  of  delivery  is  open  to  ex- 
planation. Thus  where  the  makers  of  a  promissory  note, 
payable  to  the  wife,  or  bearer,  and  given  as  the  proceeds  of 
sale  of  her  real  estate,  hand  the  note  to  the  husband  who 
immediately  delivers  it  to  the  wife,  in  whose  separate  posses- 
sion it  thereafter  continues,  no  reduction  takes  place.^  But 
it  would  be  otherwise,  we  apprehend,  if  the  husband  had 
placed  the  note  among  his  own  effects,  never  given  it  to  his 
wife,  nor  admitted  a  trust  on  his  part,  and  in  all  other  respects 
acted  as  the  owner  of  the  property. 

An  agreement  to  sell  the  fund  is  not  a  reduction  into  pos- 
session.^ Nor  is  a  fund  reduced  by  being  set  off  against  the 
husband's  debt,  no  money  having  passed  nor  releases  having 
been  interchanged.  At  least  this  is  the  doctrine  of  some 
cases.  Thus  in  Harrison  v.  Andreivs^  a  testator  gave  a 
legacy  to  the  wife ;  the  husband  being  indebted  to  the  tes- 
tator in  an  equal  amount,  the  husband  and  wife  agreed  to 
set  off  the  debt  against  the  legacy,  and  signed  a  legacy  receipt 
for  the  amount ;  but  it  was  held  that  these  acts  constituted 
no  reduction.* 

If  the  husband  pledges  his  wife's  cliose  in  action  not  already 

reduced  to  possession  or  assigns  it  as  collateral  security,  it 

would  appear  that  on  the  redemption  of  such  pledge 

*  120    or  security  *  the  chose  is  placed  in  statu  quo,  and  re- 

1  Holmes  v.  Holmes,  28  Vt.  765. '  And  see  Lenderman  v.  Talley,  1  Houst. 
523.  A  negotiable  note  given  to  a  third  party  by  a  husband  before  marriage,  is 
not  extinguished  by  the  mere  fact  of  its  purchase  from  such  party  by  tlie  wife 
by  money  belonging  to  her  before  marriage,  not  reduced  to  possession  by  the 
husband.     Russ  v.  George,  45  N.  H.  467. 

^  Barber  v.  Slade,  30  Vt.  191 ;  Hall  v.  Young,  37  N.  H.  134  ;  Barron  v.  Bar- 
ron, 24  Vt.  375. 

3  Harwood  v.  Fisher,  1  Younge  &  Coll.  Eq.  Ex  110 ;  1  Bright  Hus.  &  Wife,  52. 

*  13  Sim.  595.  So  Sir  Wm.  Grant,  in  Carr  v.  Taylor,  10  Ves.  Jr.  574.  See 
other  cases  cited  in  n.  to  1  Bright  Hus.  &  Wife,  52. 

[122  ] 


WIFE'S  PERSONAL  PROPERTY.         *  120 

mains  the  property  of  the  wife  until  further  reduction. ^ 
Whether  the  same  can  be  said  of  a  chattel  mortgage  is  not 
certain.!  The  language  of  the  instrument  in  deseril)ing  the 
parties  might  aid  in  determining  the  question  of  intention 
whenever  it  arises.  Certainly,  whatever  may  be  the  technical 
difference  between  a  pledge  and  a  chattel  mortgage,  the  latter 
operates  a  defeasible  title  only  in  the  mortgagee.  As  to 
money  secured  by  a  mortgage  to  the  wife,  it  is  held  that  if 
the  debt  has  been  once  paid  to  the  husl)and  reduction  is  com- 
pleted, even  though  he  die  before  executing  a  reconveyance 
of  the  "property.  Under  such  circumstances  equity  will  ac- 
tually compel  the  wife  to  reconvey  and  perfect  the  title  with- 
out allowing  her  any  benefits  from  the  property .^ 

Where  real  estate  of  the  wife  is  sold,  and  notes  are  given, 
payable  to  her,  the  property  changes  its  character  and  be- 
comes personal  property  in  the  shape  of  a  chose  in  action.^ 
The  husband  may  then  reduce  into  possession  as  in  other 
cases.  And  if  the  executor  or  other  party  making  the  sale 
pays  the  cash  proceeds  into  the  husband's  hands,  the  money 
belongs  to  him  absolutely,  and  his  receipt  extinguishes  all 
claims  of  his  wife.*  So  if  the  notes  taken  for  the  purchase- 
money  are  in  the  husband's  own  name  the  reduction  is  held 
complete.^  Money  paid  by  a  married  woman  upon  a  bond  to 
convey  land  to  her  is  prima  facie  her  husband's,  and 
may  be  recovered  by  him.^  *  And  proceeds  of  the  sale  *  121 
of  a  widow's  dower  vest  in  her  second  husband." 

1  Latourette  v.  Williams,!  Barb.  9;  Ilartnian  v.  Dowdel,  1  Kawle,  279. 
There  is  a  dictum  of  Chancellor  Kent  (2  Kent  Com.  137;  also  in  Schuyler  v. 
Hoyle,  5  Johns.  Ch.  196)  to  tlie  effect  that  the  mortgage  of  a  chose  in  action  is  of 
itself  a  sufficient  reduction  into  possession.  We  find  no  autliorities  to  support 
this  statement.  But  see  Tritt  v.  Colwell,  31  Penn.  St.  228,  a  recent  case  which 
recognizes  a  distinction  in  this  respect  between  a  pledge  and  a  mortgage. 

2  Hees  r.  Iveith,  11  Sim.  388;  Bosoil  v.  Brandd-,  1  P.  Wms.  458;  Bates  v. 
Dandy,  2  Atk.  208. 

3  Taggart  v.  Boldin,  10  Md.  104;  McCrory  v.  Foster,  1  Iowa,  271.  See  Pea- 
cock V.  Pembroke,  4  Md.  280 ;  Ramsdale  v.  Craighill,  9  Ohio,  199. 

*  Johnson  v.  Bennett,  39  Barb.  237. 

5  Dixon  V.  Dixon,  18  Oliio,  113;  Talbot  v.  Dennis,  1  Carter,  471;  McCrory 
V.  Foster,  1  Iowa,  271.  But  if  secured  by  mortgage,  the  mortgage  also  ought  to 
be  in  the  husband's  name.  •>  Casey  v.  Wiggin,  8  Gray,  231. 

^  Ellsworth  V.  Hinds,  5  Wis.  613 ;  Bartlett  v.  Janeway,  4  Sandf  Ch.  396 
(N.  Y.  Stat.).     But  see  Barber  v.  Slade,  30  Vt.  191. 

[123] 


*  121  HUSBAND   AND  WIFE. 

Legacies  and  distributive  shares  in  like  manner  vest  abso- 
lutely in  the  husband  by  reduction  into  possession  ;  but  not 
before.  And  where  a  Avife  is  entitled  to  a  portion  of  the  assets 
of  her  first  husband's  estate,  and  then  remarries,  her  second 
husband  must  reduce  this  portion  into  possession  during  cover- 
ture or  it  will  survive  to  her.^  The  institution  of  a  suit  to 
recover  a  legacy  accruing  to  the  wife  is  not  sua  vi  a  reduction 
when  brought  in  the  name  of  both  parties.^  But  payment  to 
the  husband  or  his  attorney,  after  judgment,  operates  a  reduc- 
tion.^ The  husband  may  assign  a  legacy  or  distributive  share 
like  any  other  chose .^  Reduction  of  a  legacy  has  been  con- 
sidered complete  where  the  husband  takes  a  quitclaim  deed 
from  the  testator's  residuary  devisee  upon  condition  that  he 
shall  pay  this  and  the  other  legacies.^  But  some  distinct  act 
of  ownership  on  the  husband's  part  is  necessary  ;  and  it  is 
doubtful  whether  his  right  is  complete  even  after  a  decree  of 
distribution  ;  the  decree  itself  effecting  no  reduction.  The 
share  or  legacy  should  be  actually  severed  from  the  bulk  of 
the  estate  whence  it  was  derived.^ 

Any  act  on  the  husband's  part  which  amounts  to  a  complete 

act  of  ownership  over  his  wife's  chose  in  action  —  such  act  of 

ownership  extending  to  the  whole  fund  in  question  —  is  an 

effectual  reduction  into  his  own  possession.     The  rule  is,  that 

if  he  recovers  her  debt  by  a  suit  in  his  own  name,  or  if 

*  122    he  releases  *  the  debt,  or  novates  the  debt  by  taking  a 

new  security  in  his  own  and  not  in  his  wife's  name  ;  in 
aU  these  cases,  upon  his  death,  the  right  of  survivorship  in 

1  Harper  v.  Archer,  28  Miss.  212.  See  also  Ex  parte  Norton,  35  E.  L.  &  Eq. 
609 ;  Montefiore  v.  Belireno,  L.  R.  1  Eq.  171 ;  Wiggins  v.  Blount,  83  Geo.  409. 

2  Knight  V.  Branner,  14  Md.  1 ;  Harris  v.  Taylor,  3  Sneed,  536 ;  Hall  v.  McLain, 
11  Humph.  425. 

3  Alexander  v.  Crittenden,  4  Allen,  342.     See  post,  p.  126. 

1  B  yan  v.  Spruill,  4  Jones  Eq.  27  ;  Weems  v.  AVeems,  19  Md.  334. 

5  Howard  v.  Bryant,  9  Gray,  239. 

•i  Short  V.  Moore,  10  Vt.  446 ;  Probate  Court  v.  Niles,  32  Vt.  775 ;  Lewis  v. 
Price,  3  Rich.  Eq.  172.  But  see  Walker  v.  Walker,  25  Mis.  367  ;  Vanderveer  v. 
Alston,  16  Ala.  494.  A  husband  reducing  his  wife's  legacy  to  possession  and 
buying  a  land-claim,  and  afterwards  the  fee  to  the  land  in  his  own  name,  no 
trust  results  in  her  favor.  Thomas  v.  Chicago,  55  111.  103.  See  Walker  v. 
Walker,  41  Al  .  353.  As  to  whether  the  husband's  note  given  for  purchase  at 
the  administrator's  sale  can  be  set  off  against  the  wife's  distributive  share,  see 
Robeits  V.  Adams,  2  S.  C.  n.  s.  337. 

[12^] 


WIFE'S  PERSONAL  PROPERTY.  *  122 

the  wife  to  the  property  ceases.^  But  the  property  must 
come  under  the  actual  control  of  tlie  husband,  quasi  husband, 
and  not  as  trustee  or  attorney  for  the  wife  ;  though  a  hus- 
band's appointment  as  trustee  will  not  deprive  him  of  the 
same  right  to  reduce  the  trust  fund  to  his  own  possession, 
which  he  would  have  were  a  third  person  the  trustee.^ 
The  cases  show,  in  short,  that  there  should  always  exist  both 
the  intent  to  appropriate  to  his  own  use  and  the  act  of  appro- 
priation. 

Reduction  into  possession  may  be  effected  through  the 
medium  of  a  third  person  duly  empowered  to  act  for  that 
purpose.^  And  the  receipt  of  the  wife's  distributive  share  by 
an  agent  appointed  under  a  power  of  attorney  executed  by 
the  wife  to  her  husband  is  a  sufficient  reduction  hj  the  hus- 
band, and  enables  the  latter  to  sue  the  attorney  for  the  pro- 
ceeds.* But  where  A.  receives  money  for  the  use  of  a  married 
woman,  and  writes  to  her  that  he  holds  the  money  at  her  dis- 
posal, this  constitutes  an  attornment  to  the  wife  and  not  to  the 
husband  ;  and  the  latter  must  do  something  more  in  order  to 
make  the  fund  his  own.^ 

It  is  held  in  England  that,  where  the  husband  was  a  lunaltic, 
payment  into  court  of  the  wife's  cliose  in  actioyi  to  the  credit 
of  the  lunacy  amounted  to  a  reduction  into  possession.^  But 
in  New  Hampshire  a  singular  doctrine  is  laid  down ;  namely, 
that  the  husband's  right  of  reduction  is  so  far  personal  to 
him,  that  it  cannot  be  exercised  by  his  guardian,  if  he  be 
insane.^ 

The  hr.sband's  right  to  reduce  his  wife's  choses  in  actioninto 
possession  is  one  of  election  merely.    He  may  therefore  neglect 

1  2  Kent  Com.  137,  138.  See  Hanson  v.  Miller,  14  Sim.  22  ;  8  Jur.  209,352  ; 
Bumhani  v.  Bennett,  2  Coll.  C.  C.  254 ;  Scott  v.  Hix,  2  Sneed,  192. 

2  Wall  V.  Tomlinson,  16  Ves.  413 ;  Dunn  v.  Sargent,  101  Mass.  336  ;  Ryland 
V.  Smith,  1  My.  &  Cr.  53 ;  Burnham  v.  Bennett,  2  Coll.  254 ;  Barron  v.  Barron, 
24  Vt.  375;  Savage  v.  Benham,  17  Ala.  119.  But  see  Rees  v.  Keith,  11  Sim. 
388. 

3  Roll.  Abr.  342,  350  ;  1  Bright  Hus.  &  Wife,  53. 

*  Turton  v.  Turton,  6  Md.  375;  Alexander  v.  Crittenden,  4  Allen,  342.  See 
Hill  V.  Hunt,  9  Gray,  66. 

s  Fleet  I'.  Perrins,  L.  R.  3  Q.  B.  536. 

6  In  re  Jenkins,  5  Russ.  183. 

1  Audover  v.  Merrimack  County,  37  N.  H.  437. 

[  125  ] 


*  122  HUSBAND   AND   WIFE. 

or  refuse  to  do  so,  and  thus  keep  the  property  vested  in  his 
wife.^     This  becomes  a  very  important  principle  in  determin- 
ing the  rights  of  his  creditors.     For,  supposing  him  to 

*  123    be  embarrassed  *  in  his  affairs,  can  they  attach  the  un- 

reduced choses  in  action  of  his  wife  as  his  propert}'  ?  It 
is  settled  that  they  cannot.  But  if  he  once  makes  the  prop- 
erty his  OAAai  they  can  reach  it ;  and  he  cannot  transfer  it 
again  to  his  wife  in  prejudice  of  their  pre-existing  rights,  even 
though  it  vested  in  him  but  for  a  brief  time.  And  of  course 
his  own  expressions  of  regret  cannot  avail  against  the  hus- 
band's actual  appropriation  of  his  wife's  choses  in  action..^ 

This  brings  us  to  a  very  perplexing  branch  of  the  present 
subject ;  namely,  that  of  the  husband's  reduction  into  posses- 
sion by  assignment.  Choses  in  possession  are  capable  of 
assignment.  Choses  in  action,  however,  with  the  exception 
of  negotiable  instruments,  such  as  bills  of  exchange,  checks, 
and  promissory  notes  (to  which  we  may  doubtless  add  coupon 
bonds  ^),  cannot  be  assigned  at  law  ;  but  in  equity  they  may.* 
The  assignment,  however,  to  be  effectual,  should  be  without 
reservation.  And  the  husband's  agreement  to  assign  is  like- 
wis'e  sustainable  in  equity,  on  the  principle  that  what  one 
agrees  to  do  shall  be  considered  as  done.^  But  whether  the 
assignment  of  itself  will  bar  the  rights  of  the  wife  by  survivor- 
ship and  constitute  reduction  into  possession,  is  quite  another 
thing. 

If  the  assignment  of  the  wife's  choses  in  action  be  purely 
voluntary  and  without  consideration,  it  does  not  bind  the 
wife.^  As,  for  instance,  where  a  husband,  pending  divorce 
proceedings  against  him,  makes  a  pretended  transfer  for  the 

1  Coffin  V.  Morrill,  2  Fost.  352 ;  Harris  v.  Taylor,  3  Sneed,  536  ;  Gallego  v. 
Gallego,  2  Brock.  287  ;  Mellingen  v.  Bansmann,  45  Penn.  St.  522 ;  Stoner  v. 
Commonwealtli,  16  Penn.  St.  387  ;  Snowden  v.  Lindslej',  6  Cold.  122.  See  Pea- 
cock V.  Pembroke,  4  Md.  280. 

2  Nolen's  Appeal,  23  Penn.  St.  37. 

3  See  Thomson  v.  Lee  County,  3  Wall.  327. 

*  Crouch  i;.  Martin,  2  Vern.  5'J5 ;  Honner  v.  Morton,  3  Russ.  65. 

5  Druce  v.  Dennison,  6  Yes.  394  ;  Steed  v.  Cragh,  9  Mod.  43. 

6  Wright  V.  Rutter,  per  Lord  Alvanley,  2  Ves.  Jr.  673;  Burnett  r.  Kinnaston, 
2  Vern.  401;  Sir  Wra.  Grant,  in  Mitford  v.  Mitford,  9  Ves.  87  ;  Sir  Tliomas  Plu- 
mer,  in  Jolmson  v.  Johnson,  1  Jac.  &  Walk.  472 ;  Jewson  v.  Moulson,  2  Atk.  417  ; 
2  Kent  Com.  137  ;  Hartman  v.  Dowdel,  1  Rawle,  279. 

[  126  J 


WIFE'S  PERSONAL  PROPERTY.         *  123 

purpose  of  barring  her  rights  to  the  property.  Nor  does  a 
voluntary  assignment  for  the  benefit  of  creditors  carry  them.i 
A  general  assignment  in  bankruptcy  or  insolvency 
passes  at  law  the  wife's  *  property,  and  by  way  of  *  12-4 
partial  recompense,  as  it  would  appear,  the  husband's 
discharge  has  been  allowed  to  operate  upon  the  wife's  debts 
dum  sola  as  well  as  his  own.  But  in  equity  the  assignees  are 
permitted  to  take  the  same  interest  in  the  wife's  dioses  in 
action  as  the  husband  possessed,  and  no  more  ;  and  unless 
they  reduce  them  into  possession  during  her  husband's  life- 
time she  will  be  entitled  to  them  by  survivorship. ^  Indeed, 
in  Pennsylvania  a  voluntary  assignment  of  the  husband  to 
trustees  for  wife  and  child,  so  as  to  defeat  his  creditors,  has 
been  upheld  by  a  court  of  equity  against  such  creditors 
on  the  ground  that  it  was  for  the  benefit  of  his  wife  and 
child.3 

But  the  equity  rule  as  to  assignments  of  the  wife's  clioses  in 
action  to  individuals  for  valuable  consideration  is  very  capri- 
cious. It  was  formerly  maintained  that  the  husband's  assign- 
ment of  his  wife's  chose  in  action  for  a  valuable  consideration 
would  l)ar  not  only  a  present  interest  of  the  wife,  but  also  a 
contingent  interest,  or  the  possibility  of  a  term  or  a  specific 
possibility.*  Sir  William  Grant  threw  doubt  upon  this  doc- 
trine by  the  objection  that  this  would  give  the  assignee 
a  greater  right  than  the  husband  himself.^  It  remained  for 
Sir  Thomas  Plumer  to  break  it  down  completely,  and  to  place 
all  assignments  upon  the  same  footing.  This  he  attempted  in 
the  celebrated  case  of  Purdetv  v.  Jackson,^  where  the  question 

1  Cases  supra  ;  Wright  v.  Rutter,  2  Ves.  Jr.  673 ;  1  Bright  Hus.  &  Wife,  81. 

2  Sherrington  v.  Yates,  12  M.  &  W.  855;  Miles  v.  Williams,  1  P.  Wms.  249; 
Mitford  V.  Mitford,  9  Ves.  87  ;  2  Kent  Com.  138 ;  Van  Epps  v.  Van  Deusen,  4 
Paige,  04  ;  Outcalt  v.  Van  Winkle,  1  Green  Ch.  616  ;  Moore  v.  Moore,  14  B. 
Monr.  25U  ;  1  Bright  Hus.  &  Wife,  79,  83,  and  cases  cited ;  Hay  v.  Bowen,  6 
Beav.  610 ;  Poor  v.  Hazleton,  16  N.  H.  664  ;  Mann  v.  Higgins,  7  Gill,  265. 

8  Siter  V.  Jordan,  4  Rawle,  468.  See  also  Andrews  v.  Jones,  10  Ala.  400. 
See  cotiira,  Dold  v.  Geiger,  2  Gratt.  98. 

<  See  Chandos  i'.  Talbot,  2  P.  Wms.  601  ;  Bates  r.  Dandy,  2  Atk.  207  ;  Haw- 
kins V.  Obin,  ib.  549  ;  n.  to  2  Kent  Com.  138. 

6  Mitford  V.  Mitford,  9  Ves.  87.     And  see  Ilornsby  v.  Lee,  2  Madd.  Cli.  16. 

6  1  Kuss.  1-71  (1823).  Ill  Ashby  i-.  Ashby,  1  Coll.  653,  this  rule  was  fully 
approved.     See  too  Ellison  v.  Elwin,  13  Sim.  309. 

[127] 


*  124  HUSBAND   AND   WIFE. 

arose  as  to  the  effect  of  an  assignment  by  husband  and  wife 
of  her  vested  interest  in  remainder.     In  an  elaborate 

*  125    opinion  he  maintained  *  that  whatever  the  nature  of 

the  assignment,  whether  in  bankruptcy,  to  trustees  for 
payment  of  debts,  or  to  a  specific  purchaser  for  value,  it 
could  pass  the  husband's  interest  and  no  more ;  that  the 
assignee  must  afterwards  reduce  the  property  to  possession 
during  the  husband's  lifetime  ;  and  that  no  assignment  was 
possible  of  the  wife's  reversionary  interest,  so  as  to  bar  her  as 
survivor,  provided  the  interest  continued  reversionary.  After- 
wards Lord  Lyndhurst,  while  approving  this  doctrine  to  the 
extent  of  the  actual  decision,  suggested  a  distinction  between 
the  cases  where  the  husband  can  completely  appropriate,  at 
the  time  of  the  assignment,  and  those  where  he  cannot ;  and 
thought  that  the  assignment  might  stand  in  the  former  in- 
stance as  an  agreement  to  appropriate  or  a  sort  of  equitable 
reduction  into  possession.^  The  later  English  cases  seem  to 
follow  this  suggestion.2  So  that  the  present  doctrine  in  Eng- 
land is  understood  to  be  that  the  husband's  assignment  for 
value  to  a  specific  purchaser  will  bar  the  wife's  survivorship, 
provided  the  husband  has  during  coverture  the  right  of  reduc- 
ing into  liis  own  possession ;  but  that  he  cannot  assign,  so  as 
to  bar  the  wife's  survivorship,  unless  such  reduction  becomes 
possible  before  his  death. ^ 

In  this  country  the  rule  is  far  from  uniform.  The  Penn- 
sylvania courts,  repudiating  this  modern  chancery  doctrine 
altogether,  maintain  that  the  assignment  to  a  specific  pur- 
chaser for  value  bars  the  wife's  right  of  survivorship.^  For, 
it  is  said,  the  husband  by  marriage  gains  a  full  power  of  dis- 
posal over  his  wife's  property,  and  any  distinction  between 
vested  and  contingent  interests  in  respect  to  the  marital  do- 
minion and  power  of   transfer  is  unsound.^     This  doctrine 

1  Honner  v.  Morton,  3  Russ.  G5. 

2  Per  Lord  Brougliam,  Stanton  v.  Hall,  2  Russ.  &,  My.  175  ;  Elliott  v.  Cordell, 
5  Madd.  Ch.  149. 

3  Tidd  V.  Lister,  17  E.  L.  &  Eq.  567  ;  8.  c.  on  appeal,  3  De  G.,  M.  &  G.  857. 

1  Shuman  v.  Reigart,  7  W.  &  S.  169 ;  Siter's  Case,  4  Rawle,  468 ;  Webb's 
Appeal,  21  Penn.  St.  248 ;  Smilie's  Estate,  22  Penn.  St.  130. 
5  See  Siter's  Case,  ib.,  per  Gibson,  C.  J. 

[128] 


WIFE'S  PERSONAL  PROPERTY.  *  125 

has  received  approval  *in  some  other  States.^      But    *  126 
the  doctrine  of  Purdew  v.  Jackson  has  been  more  fre- 
quently approved  by  our  courts ;    probably,  if  the  question 
should  now  arise  again,  with  the  qualifications  which   Lord 
Lyndhurst  introduced.^ 

There  seems  to  be  no  reason  for  a  distinction  between  re- 
leases and  assignments  from  the  husband,  so  far  as  the  effect 
upon  the  wife's  survivorship  is  concerned.  But  in  one  case 
it  was  observed  that  the  husband's  release  might  amount  to 
reduction  as  against  the  wife.^  A  later  decision,  however, 
puts  releases  and  assignments  on  the  same  footing.'*  And  in 
this  country  no  distinction  is  made  between  the  two  modes 
of  transfer.^ 

The  wife's  outstanding  choses  may  be  recovered  by  a  suit 
so  as  to  prevent  them  from  going  back  to  her  in  case  she  be 
the  survivor.  The  general  rule  is  that  for  property  accruing 
to  the  wife  before  marriage,  the  wife  must  be  joined  in  the 
suit,  although  the  husband  during  coverture  may  alter  the 
debtor's  liability,  as  by  changing  the  security,  or  giving  time 
on  a  promise  to  himself,  and  may  then  sue  alone  ;  ^  in  which 
case,  perhaps,  the  reduction  into  possession  is  effected  by  the 
alteration  of  the  debt  and  not  by  the  suit.  Where,  however, 
property  accrues  to  the  wife  after  marriage,  the  hus- 
band may  elect  either  *  to  sue  alone  or  to  join  his  wife  *  127 
as  the  meritorious  cause."     Such  being  the  state  of  the 

1  Manion  v.  Titsworth,  18  B.  Monr.  582 ;  Turtle  v.  Fowler,  '12  Conn.  58  ;  Hill 
V.  Townsend,  24  Tex.  675. 

^  Bugg  V.  Franklin,  4  Sneed,  129 ;  George  v.  Goldsby,  23  Ala.  32G  ;  Arring- 
ton  V.  Yarborough,  1  Jones  Eq.  72;  Lynn  v.  Bradley,  1  Met.  (Ky.)  282;  Smith 
V.  Atwood,  14  Geo.  402  ;  State  v.  Robertson,  5  Harring.  201  ;  Needles  v  Needles, 
7  Ohio  St.  432 ;  Bryan  v.  Spruill,  4  Jones  Eq.  27.  The  husband's  assignee  may 
avail  himself  of  fraud  upon  the  husband's  marital  rights.  Joyner  v.  Denny, 
Busbee  Eq.  176.  In  Stiffe  v.  Everitt,  1  M.  &  C.  37,  Lord  Cottenham  suggests 
what  may  be  at  tlie  foundation  of  the  present  distinction  in  the  English  equity 
rule  as  to  assignees  for  value,  namely,  that  neither  the  husband  alone,  nor  the 
husband  and  wife  together,  can  dispose  of  the  wife's  life-interest  in  a  fund, 
beyond  the  duration  of  the  coverture.     See  Macq.  Hus.  &  Wife,  58,  59. 

»  Hore  V.  Becher,  12  Sim.  465,  6  Jur.  94,  Shadwell,  V.  C. 

*  Rogers  v.  Acaster,  11  E.  L.  &  Eq.  300  ;  14  Beav.  445. 

s  Needles  v.  Needles,  7  Ohio  St.  432 ;  Kenny  v.  Udall,  5  Johns.  Ch.  464. 

6  Yard  v.  Ellard,  1  Salk.  117,  pi.  8 ;  Carth.  463 ;  Sid.  299. 
See  Bright  Hus.  &  Wife,  61-06  ;  Chitty  PI.  32-38,  7th  ed. 

9  [  129  ] 


*  127  HUSBAND  AXD  WIFE. 

law,  there  is  a  distinction  between  suits  brought  in  the  hus- 
band's name  alone,  and  suits  in  the  name  of  both  husband 
and  wife.  In  the  former  case  he  elects  to  disaffirm  his  wife's 
title,  and  bringing  the  suit  operates  as  a  reduction.^  In  the 
latter  he  admits  her  possible  title  by  survivorship,  and  the 
reduction  is  ineffectual  until  the  debt  is  collected  on  execu- 
tion or  otherwise  ;  ^  for  even  a  recover}^  of  judgment  is  insuf- 
ficient.^ 

In  chancery  proceedings  both  husband  and  wife  are  made 
parties ;  and  as  we  shall  presently  see,  equity  compels  a  set- 
tlement upon  the  wife  before  entering  a  decree  in  the  hus- 
band's favor.  It  is  said  that  decrees  in  chancery  so  far 
resemble  judgments  at  law  that  until  the  money  be  ordered 
to  be  paid,  or  declared  to  belong  to  the  husband,  the  wife's 
rights  will  remain  undisturbed.  But  an  order  for  payment 
of  money  to  the  husband,  vests  it  in  him  free  from  the  wife's 
right  by  survivorship.^ 

As  to  the  submission  to  arbitration  it  is  said  that  the  origi- 
nal claim  is  extinguished  by  the  award  and  a  new  duty  thereby 
created.^  If  the  money  awarded  be  to  the  husband,  and  he 
die  before  payment,  it  will  go  to  his  personal  representatives, 
and  not  his  wife.^  So  much  has  been  decided.  Some  are  of 
the  impression  that  in  other  respects  the  wife's  interest  will 
dejDend  upon  the  stage  of  proceedings  reached  at  the 

*  128    time  of  the  husband's  *  death,  and  that  neither  the 

submission  to  arbitration,  nor  the  award  itself,  unless 


1  Oglander  v.  Baston,  1  Vern.  396  ;  2  Ves.  Sen.  677 ;  12  Mod.  346.  See 
Pierson  r.  Smith,  9  Ohio  St.  554. 

2  Bond  V.  Simmons,  3  Atk.  21 ;  supra,  p.  121.  The  exception  formerlj  made 
in  favor  of  bills  of  exchange  and  promissory  notes  does  not  now  exist.  See 
cases  supra,  p.  118.  The  husband  must  therefore  follow  the  above  rules  of  suit. 
Sherrington  v.  Yates,  12  M.  &  W.  855 ;  1  Dowl.  &  L.  1032.  And  see  Pike  v.  Col- 
lins, 33  Me.  43 ;  Mason  v.  McNeill,  23  Ala.  201 ;  PettingiU  v.  Butterfield,  45 
N.  H.  195. 

8  Crittenden  t'.  Alexander,  16  Gray,  432. 

*  See  Nanney  v.  Martin,  Eq.  Cas.  Abr.  68;  8  Atk.  726  ;  Macaulay  v.  Phillips, 
4  Ves.  19  ;  Hey  gate  v.  Annesley,  3  Bro.  C.  C.  362 ;  1  Bright  Hus.  &  Wife,  67-69  ; 
Lowery  i'.  Craig,  30  Miss.  19. 

s  Reeve  Dom.  Kel.  21.  But  see  Hunter  v.  Rice,  15  East,  100;  Thorpe  y. 
Eyre,  1  Ad.  &  El.  926  ;  3  Nev.  &  M.  214. 

•>  Oglander  v.  Baston,  1  Vern.  396. 

[130] 


WIFE'S  PEKSONAL  PEOPERTY.  *  128 

in  the  husband's  favor,  operates  as  a  reduction  into  posses- 


sion 


The  result  of  the  foregoing  observations  is  that  reduction 
into  possession  offers  many  very  nice  distinctions,  involving 
conflicting  rights  of  considerable  magnitude.  Courts  of 
equity,  which  have  taken  this  subject  under  their  especial 
control,  seem  to  lay  down  variable  rules  ;  and  it  must  be  con- 
fessed that  the  law  of  reduction  is  so  built  uj)on  exceptions, 
that  one  may  more  readily  determine  what  acts  of  the  hus- 
band do  not,  than  what  acts  do,  bar  the  wife's  survivorship. 
Another  difficulty  in  dealing  with  this  subject  appears  from 
the  circumstance  that  personal  property  is  rapidly  growing, 
and  species  of  the  incorporeal  sort  are  developed  quite  un- 
known to  the  old  common  law,  while,  on  the  other  hand,  the 
doctrine  of  the  wife's  separate  estate  has  expanded  so  fast  as 
to  furnish  already  new  elements  of  consideration  for  most  of 
the  latest  reduction  cases,  threatening  to  extinguish  at  no 
distant  day  all  the  old  learning  on  the  subject  even  before 
its  leading  principles  could  be  clearly  shaped  out  in  the 
courts. 

The  wife's  equity  to  a  settlement,  which  constitutes  an 
important  branch  of  the  English  chancery  jurisprudence,  is 
closely  connected  with  the  husband's  right  of  reduction  into 
possession.  Whenever  the  husband  or  his  representative  has 
to  seek  the  aid  of  a  court  of  chancery  in  order  to  recover  his 
wife's  property,  he  must  submit  to  its  order  of  a  suitable  set- 
tlement from  the  fund.  This  settlement,  which  is  made  upon 
the  wife  for  the  separate  benefit  of  herself  and  the  children  as 
a  provision  for  their  maintenance  and  comfort,  is  known  as 
the  wife's  equity.^  Thus  chancery,  by  a  stretch  of  power 
somewhat  arbitrary,  interferes  to  do  an  act  of  justice.  The 
doctrine  seems  to  rest  upon  two  grounds  :  first,  that  whoever 

1  See  1  Bright  Hus.  &  Wife,  70  ;  Macq.  Hus.  &  Wife,  62.  The  wife  will  not 
be  bound  by  her  agreement  pending  suit.  Macaulay  v.  Phillips,  4  Ves.  15.  But 
why  should  not  the  husband  be  allowed  todisafhrm  his  wife's  title  by  submitting 
the  chose  to  arbitration  as  his  own  as  well  as  in  suing  alone  ^ 

^  2  Kent  Com.  13ii-143,  and  cases  cited  ;  1  Bright  Hus.  &  Wife,  230-265 ; 
2  Story  Eq.  Juris.  635. 

[  131  ] 


*  128  HUSBAND  AND  WIFE. 

comes  into  equity  must  do  equity ;  second,  that  chancery  is 
the  special  champion  of  women  and  children.^ 

The  rule  is  the  same  whether  the  thing  to  be  reduced  into 
possession  be  a  debt,  legacy,  or  distributive  share  be- 

*  129    longing  *  to  the  wife,  or  any  other  eJiose  in  acticm? 

Chancery  will  also  restrain  the  husband  by  injunction 
from  proceeding  to  recover  a  fund  in  the  ecclesiastical  or 
probate  courts,  until  a  like  provision  is  made  ;  for  the  reason 
that  it  has  a  concuri-ent  or  appellate  jurisdiction  in  the  settle- 
ment of  estates.^  In  this  country  a  court  of  equity  has  some- 
times gone  so  far  as  to  lay  hold  of  property  for  which  recovery 
is  sought  in  the  courts  of  common  law.'*  But  the  English 
cases  do  not  warrant  such  an  exercise  of  power.^  The  blend- 
ing of  equity  and  common-law  functions  in  American  tribunals 
might  here  justify  a  departure  from  the  j)arent  system. 

But  the  wife's  equity  does  not  attach  to  her  property  while 
in  the  hands  of  third  persons.  They  may,  if  they  choose, 
defeat  it  by  placing  the  fund  directly  in  the  husband's  hands 
without  the  intervention  of  a  suit.  Thus  where  an  executor 
pays  over  a  legacy  accruing  to  the  wife,  taldng  a  proper  receipt 
from  the  husband,  a  court  of  equity  will  not  call  it  back  from 


1  Meals  V.  Meals.  1  Dick.  373 ;  Peachey  Mar.  Settl.  158,  159.  This  juris- 
diction appears  to  have  been  exercised  from  the  earliest  period.  Sturgis  v. 
Chaiupneys,  5  M.  &  C.  103,  per  Lord  Chancellor  Cotrenham. 

2  Kenney  v.  Udali,  5  Johns.  Ch.  464  ;  8  Cow.  590  ;  Durr  ?;.  Bowyer,  2  McCord, 
Ch.  368  ;  Diivall  v.  Farmers'  Bank  of  Maryland,  4  Gill  &  Johns.  282  ;  Abernetliy 
V.  Abernethy,  8  Fla.  243;  Haviland  v.  Bloom,  6  Jones  Ch.  178 ;  Smith  v.  Kane, 
2  Paige,  303.  But  see  Tobin  r.  Di.xon,  2  INIet.  (Ky.)  422;  Ex  parte  Gedder,  4 
Rich.  Eq.  SOI. 

3  Jewson  V.  Moulson,  2  Atk.  419 ;  Dumond  v.  Magee,  4  Johns.  Ch.  318. 

4  Van  Epps  v.  Van  Deusen,  4  Paige,  64;  note  to  2  Kent  Com.  140;  2  Kent 
Com.  141,  142;  Corley  v.  Corley,  22  Geo.  178;  Dearin  r.  Fitzpatrick,  Meigs, 
551.  But  see  Matter  of  Miller,  1  Ashm.  823  ;  Parsons  v.  Parsons,  9  N.  H.  309-336 ; 
Allen  V.  Allen,  6  Ired.  Eq.  293  ;  Barron  v.  Barron,  24  Vt.  375,  391 ;  Wiles  v. 
Wiles,  3  Md.  1. 

5  1  Roper  Hus.  &  Wife,  203  ;  Jacob's  notes  to  1  Roper  Hus.  &  Wife,  257,  558; 
Oswell  V.  Probert,  2  Ves.  Jr.  682 ;  Sturgis  o.  Champneys,  5  M.  &  C.  105 ;  Jewson 
V.  Moulson,  2  Atk.  419.  And  see  Jackson  v.  Hill,  25  Ark.  223.  According  to  the 
latest  English  decisions  tiie  wife's  equity  does  not  extend  to  a  reversionary  in- 
terest. No  settlement  can  be  asked  until  the  fund  falls  into  possession ;  i.e.,  until 
the  husband  has  a  ri^ht  to  receive  it.     Osborn  v.  Morgan,  8  E.  L.  &  Eq.  192. 

[  132  ]   ^ 


WIFE'S  PERSONAL  PROPERTY.         *  129 

the  husband,  to  enal)le*  a  settlement  to  be  enforced  ;  ^  but  it 
is  otherwise  if  the  executor  pays  the  legacy  over  after  pro- 
ceedings are  commenced.  For  as  soon  as  the  bill  is  filed,  the 
court  becomes  the  trustee  of  the  fund.^ 

*  As  to  assignees  and  legal  representatives  of  the  *  130 
husband  the  rule  is  the  same.     Their  application  to 

the  court  is  treated  as  the  husband's  would  have  been ;  es- 
pecially if  the  assignment  in  question  has  not  effected  a  com- 
plete reduction  so  as  to  bar  tlie  wife's  survivorship  :  a  topic 
which  has  already  been  sufficiently  discussed. ^  The  court 
disregards  the  party  who  asks  equity,  and  fastens  the  obliga- 
tion upon  the  property  itself.^ 

But  the  wife's  right  of  equity  to  a  settlement  is  something 
distinct  from  her  right  of  survivorship ;  that  is,  her  right 
upon  her  husband's  death  to  property  not  reduced  by  him.^ 
And  even  if  the  husband  has  assigned  the  fund  the  court  will 
protect  such  equity  upon  due  application.^  The  husband's 
assignee  for  valuable  consideration  takes  subject  to  the  wife's 
equity,  although  her  survivorship  may  have  been  barred  by 
the  assignment.'^  But  the  wife's  antenuptial  debts  must  first 
be  provided  for.^ 

A  distinction  seems  to  have  been  made,  however,  in  the 
English  chancery  courts,  between  cases  in  which  the  wife 
takes  an  al)solute  interest,  and  those  in  which  she  takes  a  life- 

»  Glaister  r.  Hewer,  8  Ves.  205;  Murray  v.  Elibank,  10  Ves.  90;  Bell  Hus. 
&  Wife,  115;  Pool  v.  Morris,  29  Geo.  374. 

'■^  Murray  v.  Elibank,  10  Ves.  90 ;  Delaganle  v.  Lenipriere,  6  Beav.  347  ; 
Wiles  V.  Wiles,  3  Md.  1 ;  Crook  v.  Turpin,  10  B.  Monr.  243.  But  see  Dearin  v. 
Fitzpatrick,  Meigs,  551. 

*  Oswell  V.  Probert,  2  Ves.  Jr.  679 ;  Jacobson  v.  Williams,  1  P.  Wms.  382 ; 
Jewson  V.  Moulson,  2  xVtk.  417 ;  Earl  of  Salisbury  (;.  Newton,  1  Eden,  370 ;  Bos- 
vil  V.  Brander,  1  P.  Wms.  458 ;  Kenney  v.  Udall,  5  Johns.  Cii.  464 ;  2  Bright 
Hus.  &  Wife,  286.  See  discussion  of  Purdew  y.  Jackson,  and  other  cases  supra  ; 
Carter  v.  Carter,  4  S.  &  M.  59. 

*  Aguilar  v.  Aguilar,  5  Mad.  414 ;  Osborne  v.  Edwards,  3  Stockt.  73.  See 
2  Story  Eq.  Juris.  §  1414;  Wiles  v.  Wiles,  3  xMd.  1  ;  Guild  v.  Guild,  16  Ala. 
121. 

5  Norris  v.  Lantz,  18  Md.  2G0;  Hall  v.  Hall,  4  :Md.  Cii.  283. 

6  Osl)orne  i-.  Edwards,  3  Stockt.  73. 

■J  Moore  v.  Moore,  U  B.  Monr.  259;  2  Story  Eq.  Juris.  §  1412,  and  cases 
cited. 

8  Barnard  v.  Ford,  L.  K.  4  Ch.  247. 

[133] 


*  180  HUSBAND  AND  WIFE. 

interest  only.  In  cases  where  the  wife  takes  an  absolute 
interest  the  provision  is  for  her  and  her  children.  But  where 
her  interest  is  only  for  life  the  provision  is  for  her  separate 
benefit  alone  ;  and  it  is  impossible  in  such  cases  to  make  any 
provision  for  children  ;  the  question  consequently  is  one  be- 
tween the  husband  and  wife  simply.     So,  too,  where 

*  131    the  wife's  interest  is  absolute,  her  right  *  to  a  provision 

for  herself  and  children  is  independent  of  the  conduct 
of  her  husband ;  but  where  she  takes  a  mere  life -interest, 
her  right  arises  from  the  non-fulfilment  of  his  obhgations. 
Finally,  where  the  wife  has  an  absolute  interest  the  purchaser 
takes  subject  to  a  settled  equity ;  but  where  the  wife  takes 
for  life  only  such  equity  may  not  exist.^ 

The  wife's  equity  to  a  settlement  does  not  extend  to  a  re- 
versionary interest.  The  settlement  of  such  a  fund  cannot  be 
asked  for  until  it  falls  into  possession ;  that  is,  until  the  hus- 
band has  a  right,  subject  to  the  wife  s  equity,  to  receive  it.^ 
But  as  to  all  vested  interests,  whether  acquired  by  gift,  devise, 
or  inheritance,  before  or  during  coverture,  the  rule  of  equity 
is  that  the  property  is  subject  to  the  settlement  of  a  suitable 
provision  for  her  support,  unless  expressly  waived  by  her,  or 
forfeited  through  her  misconduct ;  and  this  settlement  will  be 
protected  equally  against  the  husband,  his  creditors  or  his 
assignees,  with  or  without  value,  so  far  as  chancery  can  prop- 
erly exercise  jurisdiction  in  the  premises.^  Where  part  of  a 
reversionary  fund  falls  into  possession,  the  wife's  equity  may 
be  settled  upon  her  from  such  part,  with  liberty  to  apply  upon 
the  remaining  portion  of  the  fund  falling  into  possession.* 
An  equity  may  be  allowed  the  wife  out  of  land  in  controversy 
purchased  by  an  insolvent  husband  with  her  personalty  not 
reduced  to  possession  by  him,  where  a  creditor  seeks  to  com- 
pel a  conveyance  to  himself  of  the  land.^ 

Where  the  interest  claimed  by  the  husband  in  right  of  his 

1  Tidd  V.  Lister,  on  Appeal,  3  De  G.,  M.  &  G.  857 ;  s.  c.  10  Hare,  152  ;  Peachey 
Mar.  Settl.  162-164  ;  cases  of  Stanton  v.  Hall,  2  Euss.  &  M.  175,  and  other  cases, 
commented  upon  in  Tidd  v.  Lister,  ib.     See  as  to  life-estate,  post,  p.  157. 

-'  Osborn  v.  Morgan,  8  E.  L.  &  Eq.  192 ;  9  Hare,  432. 

•I  Barron  v.  Barron,  24  Vt.  375. 

4  Marshall  v.  Fowler,  15  E.  L.  &  Eq.  430. 

5  Sims  V.  Spalding,  2  Duv.  121. 

[134] 


WIFE'S  PERSONAL  PROPERTY.         *131 

wife  is  merely  equitable,  or  where,  thougli  in  its  nature  legal, 
it  becomes  from  collateral  circumstances  tlie  subject  of  a  suit 
in  equity,  the  wife  has  a  right  to  a  provision  out  of  the  fund. 
As  where  for  example  it  is  vested  in  trustees  who  have  the 
legal  estate,  the  wife,  or  rather  the  husband  in  her  right, 
having  only  the  equitable  or  beneficial  interest.^  But  the 
smallness  of  a  fund  is  no  bar  to  a  settlement.^ 

*  Equity  courts  will  generally  preserve  the  wife's  *  132 
portion  from  the  capital  of  the  fund  which  is  made 
the  subject  of  equity  proceedings,  and  the  husband  will  be 
allowed  to  appropriate  the  income  of  the  fund  without  hin- 
drance.^ But  a  liberal  discretion  is  exercised  by  the  court, 
according  to  the  circumstances  ;  even,  it  may  be,  to  the  dis- 
advantage of  the  husband's  creditors ;  ^  and  where  the  hus- 
band received  a  large  fortune  through  his  wife,  and  has 
squandered  nearly  the  whole  of  it,  the  remaining  fund  may 
be  placed  where  it  will  accumulate  for  her  benefit  or  the 
income  may  be  paid  for  her  support.  So  if  he  maltreats  her 
or  otherwise  conducts  himself  shamefully.  And  if  he  be- 
comes insolvent  the  wife  may  have  a  reasonable  provision 
secured  to  her  out  of  her  life-estate.^ 

There  is  no  definite  rule  fixed  as  to  the  proportion  which 
the  wife  should  receive  for  her  equity.  The  amount  is  regu- 
lated at  discretion  and  will  depend  upon  a  variety  of  circum- 
stances, such  as  the  husband's  income  from  other  sources, 
the  funds  he  may  have  already  received  through  his  wife,  the 
extent  of  former  settlements,  and  the  marital  conduct  of  both 
parties.^     Where  the  husband  is  shown  to  be  cruel,  dissolute, 

1  Macq.  Hus.  &  Wife,  69  ;  Ex  parte  Blagden,  2  Rose,  251 ;  Oswell  i'.  Probert, 
2  Ves.  Jr.  680  ;  Sturgis  v.  Cliampneys,  5  M.  &  C.  103. 

^  In  re  Kincaid's  Trusts,  17  E.  L.  &  Eq.  396.  A  strong  instance  of  tlie  liber- 
ality of  the  court  of  equity  is  afforded  in  Scott  v.  Spasliett,  16  Jur.  157  ;  9  E.  L. 
&  Eq.  265. 

3  Bond  I'.  Simmonds,  3  Atk.  20 ;  Elliott  v.  Cordell,  5  Madd.  156 ;  Vaughan  v. 
Buck,  13  Sim.  404. 

*  Montefiore  i'.  Behrens,  L.  R.  1  Eq.  171. 

5  Bond  V.  Simmonds,  3  Atk.  20.  As  to  insolvency  where  husband  has  not 
taken  benefit  of  bankrupt  acts,  see  Ex  parte  Cosegayne,  1  Atk.  192 ;  Pryor  v. 
Hill,  4  Bro.  C.  C.  142 ,  Oswell  v.  Probert,  2  Ves.  682 ;  Bell  Hus.  &  Wife,  121. 

6  2  Bright  Hus.  &  Wife,  240,  241,  and  cases  cited ;  Freeman  v.  Fairlee,  11 
Jur.  447  ;  Gardner  v.  Marshall,  14  Sim.  575  ;  Green  v.  Otte,  per  Sir  J.  Leach,  1 

[135] 


*  132  HUSBAND  AND  WIFE. 

or  improvident,  or  where  he  has  abandoned  his  family  and 
neglected  to  provide  for  their  support,  a  court  of  chancery 
will  not  hesitate  to  set  apart  at  least  the  greater  part  of  the 
fund  for  the  benefit  of  the  wife  and  children. i  So  if  he  be 
insolvent,  the  wife  is  favored  to  the  exclusion,  if  necessary,  of 
his  creditors.  In  one  case  it  was  observed  by  Alderson,  B.,  that 
the  wife  and  children  ought  to  have  the  whole  fund 

*  133    as  against  the  husband's  assignee  in  insolvency,  *  and 

he  said  that  if  he  was  bound  by  the  practice  of  the 
court  to  take  out  any  part  of  it,  he  would  take  out  one 
shilliug.2 

But  though  the  wife's  equity  to  a  settlement  is  recognized 
as  due  herself  and  her  children,  the  right  is  so  far  personal  to 
herself  that  it  cannot  be  exercised  by  any  one  else,  and  it 
expires  if  she  die  pending  proceedings,  though  there  may  be 
children  surviving  her.^  The  husband  in  such  case  takes  the 
proceeds  as  in  other  cases.  In  fact,  the  latest  cases  show  a 
clear  disposition  on  the  part  of  the  court  to  leave  a  dutiful 
husband's  interest  in  any  such  fund  unimpaired,  except  so  far 
as  may  be  necessary  to  provide  for  the  wife  and  for  all  chil- 
dren she  may  possibly  have  ;  for  which  reason  a  fund  will  be 

S.  &  S.  254  ;  Farrar  v.  Bessey,  24  Vt.  89  ;  Bagshaw  v.  Winter,  11  E.  L.  &  Eq. 
272;  Cutler's  Trust,  6  E.  L.  &  Eq.  97  ;  McVey  v.  Boggs,  3  Md.  Ch.  94  ;  Beeman 
r.  Cowser,  22  Ark.  429. 

1  Coster  V.  Coster,  9  Sim.  597. 

2  Brett  V.  Greenwell,  3  Y.  &  C.  Eq.  Ex.  230.  But  see  Pugh,  Ex  parte,  12 
E.  L.  &  Eq.  350.  Most  frequently  one-half  has  been  allowed  the  wife  as  her 
equity  under  ordinary  circumstances.  2  Bright  IIus.  &  Wife,  241,  and  cases 
cited  ;  Peachey  Mar.  Settl.  176,  177.  Where  the  wife  had  been  allowed  a  divorce 
for  adultery,  the  whole  fund  was  settled  upon  her,  the  court  justly  observing  that 
if  adultery  of  the  wife  barred  her  from  receiving,  adultery  of  the  husband  ought 
to  bar  him  equally.  Burrows  v.  Burrows,  12  E.  L.  &  Eq.  268.  See  In  re  Sug- 
gitt's  Trusts,  L.  R.  3  Ch.  215.  In  Spirett  v.  Willows,  L.  R.  1  Ch.  520,  L.  R. 
4  Ch.  407,  three-fourths  of  the  fund  were  settled  on  wife  and  children,  the  hus- 
band being  a  bankrupt.     See  form  of  settlement  there  prescribed. 

3  Delagarde  v.  Lempriere,  6  Beav.  344,  per  Lord  Langdale ;  Baldwin  v.  Bald- 
win, 5  De  G.  &  S.  319 ;  contra,  Steinmetz  v.  Halthin,  1  G.  &  J.  67.  See  Peachey 
Mar.  Settl.  166,  167.  But  not,  according  to  the  English  equity  practice,  if  she 
die,  after  a  certain  advanced  stage  of  the  proceedings.  See  Rowe  v.  Jackson, 
2  Dick.  604  ;  Murray  v.  Elibanks,  10  Ves.  92 ;  Lloyd  v.  Mason,  5  Hare,  149 ; 
Bell  Hus.  &  Wife,  128,  129  ;  Peachey  Mar.  Settl.  168,  and  cases  cited  ;  Baldwin 
V.  Baldwin,  15  E.  L.  &  Eq.  158.  In  Hobgood  i-.  Martin,  31  Geo.  62,  the  children 
were  allowed  to  file  a  supplemental  bill  after  the  wife's  death. 

[136] 


WIFE'S  PERSONAL  PROPERTY.         *  133 

limited,  after  the  death  of  the  husband  and  in  default  of 
children  of  the  wife,  to  the  husband,  whether  he  survives  her 
or  not.^  The  wife's  adultery  is  a  complete  bar  to  the  equity  ; 
and  other  misconduct  would  certainly  reduce  the  amount  if 
not  extinguish  the  equity  altogether.^  But  it  does  not  follow 
that  in  case  of  the  wife's  adultery  the  fund  would  be  decreed 
absolutely  and  at  once  to  the  husband ;  the  court  might  wait 
until  the  anomalous  relationship  of  the  parties  had  been  legally 
determined  by  divorce.^ 

The  husband  may  become  the  purchaser  of  his  wife's  fortune 
where  he  has  made  a  competent  settlement  upon  her  before 
marriage.  Regarding  him  in  this  light,  chancery  will  in  such 
a  case  not  only  refuse  to  allow  the  wife  a  settlement  from  the 
fund  in  litigation,  but  will  let  in  his  representatives 
after  his  *  death  to  make  the  reduction  complete.*  *  134 
Lord  Eldon  said,  however,  that  in  order  to  bar  the 
wife's  equity  the  articles  of  marriage  settlement  should  ex- 
pressly state  that  it  was  in  consideration  of  the  wife's  fortune 
or  else  the  contents  must  import  it  as  clearly  as  if  expressed.^ 
A  jointure  is  not  an  adequate  settlement,  for  this  is  merely  a 
bar  of  her  possible  dower.  But  any  adequate  settlement,  eo 
nomine,  seems  to  be  an  effectual  bar  to  the  wife's  equity.  A 
covenant  to  settle  must  be  performed  by  the  husband  before 
he  can  be  regarded  as  a  purchaser.^  And  the  cases  admit 
that  a  marriage  settlement  is  not  presumed  to  cover  property 
accruing  during  coverture,  but  is  to  be  confined  to  such  as 
belongs  to  the  wife   at  the  time  of  settlement,  unless  apt 

1  Walsh  V.  Wason,  L.  R.  8  Ch.  482 ;  In  re  Suggitt's  Trusts,  L.  R.  3  Cli.  215 ; 
Croxton  v.  May,  L.  R.  9  Eq.  404. 

-  Ball  V.  Montgomery,  2  Ves.  191 ;  Carr  v.  Eastabrooke,  4  Ves.  146 ; 
Peachey  Mar.  Settl.  174-176 ;  Carter  v.  Carter,  14  S.  &  M.  59 ;  Fry  i-.  Fry,  7 
Paige,  4()2. 

3  Barrow  v.  Barrow,  18  Beav.  529.  Tliis  rule  lias  been  modified  in  extreme 
cases,  however,  so  as  to  grant  equity,  even  after  adultery.  In  re  Lewin's  Trusts, 
20  Beav.  378 ;  Greedy  v.  Lavender,  13  Beav.  64 ;  Ball  v.  Coults,  1  Ves.  &  B.  302. 

*  2  Kent  Com.  143 ;  Cleland  v.  Cleland,  Prec.  in  Ch.  63 ;  Poindexter  v.  Jef- 
fries, 15  Gratt.  363. 

5  Druce  v.  Dennison,  6  Ves.  395.  See  Salway  v.  Salway,  Amb.  692;  Carr 
V.  Taylor,  10  Ves.  574  ;  Doe  v.  Ford,  2  El.  &  B.  970. 

«  Bell  Hiis.  &  Wife,  413,  and  cases  cited  ;  Holt  v.  Holt,  2  P.  Wms.  647  ;  Pyke 
V.  Pyke,  1  Ves.  Sen.  376. 

[  137  ] 


#134  HUSBAND  AND  WIFE. 

words  are  used  to  indicate  a  different  intent  of  the  parties 
thereto. 1 

The  wife  ma}^  waive  her  equity  to  a  settlement ;  for,  unlike 
her  right  of  survivorship,  it  is  the  mere  creature  of  equity. 
But  her  consent  must  be  formally  taken  under  the  direction 
of  the  court,  and  apart  from  her  husband.^  The  court  will 
not  receive  the  wife's  consent  until  her  share  is  ascertained,^ 
and  an  order  made  with  the  wife's  consent  may  afterwards  be 
set  aside  if  prejudicial  to  her  interests.* 

A  married  woman  may  also  be  precluded  by  her  own  fraud 
from  claiming  her  equity  against  purchasers.     Thus  where  a 
married  woman  wrote  out  an  assignment  of  her  reversionary 
interest  in  a  trust  fund,  dating  it  before  marriage  and  signing 
it  in  her  maiden  name,  in  order  to  enable  her  husband  to  bor- 
row money  upon  it :  and  afterwards  gave  to  the  pur- 
*  135    chasers  a  letter  *  to  one  of  the  trustees  of  the  fund, 
stating  that  she  had  before  her  marriage  assigned  her 
interest  in  the  same  to  her  husband  ;  it  was  held,  notwith- 
standing some  evidence  of  coercion  in  the  first  instance,  that 
she  was  debarred  from  claiming  a  settlement.^    And  the  wife's 
stinginess  in  dealing  with  her  separate  estate,  the  absence  of 
misconduct  on  the  husband's  part,  and  the  fact  that  she  has 
ample  means  of  her  own,  irrespective  of  any  allowance  which 
might  be  made  from  the  new  fund,  are  also  circumstances 
which  may  debar  her  from  receiving  an  equity  therein  where 
she  and  her  husband  are  living  separate.^ 

Property  held  by  the  wife  in  a  representative  capacity  at 
the  time  of  marriage  cannot  vest  in  the  husband ;  for  here  she 
has  no  beneficial  interest  which  the  law  can  transfer  to  her 


1  Note  to  2  Kent  Com.  143.     See  chapter  on  Marriage  Settlements,  post. 

2  1  Dan.  Ch.  Pract.  95 ;  Set.  on  Decrees,  255,  256 ;  Macq.  Hus.  &  Wife,  75 ; 
Coppedge  v.  Tlireadgill,  3  Sneed,  577  ;  Ward  v.  Amory,  1  Curt.  C.  C.  419. 
See  Campbell  v.  French,  2  Ves.  321 ;  May  ;;.  Roper,  4  Sim.  360.  The  consent  of 
an  infant  will  not  be  taken.  Abraham  v.  Newcome,  12  Sim.  566;  Phillips  v. 
Hassell,  10  Humph.  197. 

3  Jernegan  v.  Baxter,  6  Madd.  82  ;  Peachey  Mar.  Settl.  181. 
*  Watson  V.  Marshall,  19  E.  L.  &  Eq.  569  ;  17  Jur.  651. 

5  In  re  Lush's  Trusts,  L.  R.  4  Ch.  591.  And  see  Sharpe  v.  Foy,  L.  R.  4 
Ch.  35. 

6  Giacometti  v.  Prodgers,  L.  R.  14  Eq.  253;  L.  R.  8  Ch.  338. 

[138] 


WIFE'S  PERSONAL  PROPERTY.         *  135 

husband.i  ^^y  other  rule  would  operate  a  fraud  upon  credit- 
ors and  cestvis  que  trust.  But  if  the  wife  be  executrix  or 
administratrix  at  the  time  of  her  marriage,  the  husband  is 
entitled  to  administer  in  her  right,  by  wa}^  of  partial  offset  to 
his  liability  for  her  frauds  and  injuries  in  such  capacity.  As 
incidental  to  this  authority,  he  may  release  and  compound 
debts,  and  dispose  of  the  effects,  and  reduce  outstanding 
trust  property  into  possession,  as  his  wife  might  have  done 
before  coverture.^  He  is  accountable  for  all  property  which 
came  to  her  possession,  whether  actually  received  by  him  or 
not.3  A  married  woman  cannot  become  executrix  or  adminis- 
tratrix without  her  husband's  concurrence  ;  so  long,  at  least, 
as  he  remains  liable  for  her  acts  ;  *  nor  will  payments  made  to 
her  in  such  capacity  without  his  assent  be  valid.^  It  is  to  be 
generally  observed  in  cases  of  this  kind  that  the  right  of  dis- 
position which  the  husband  exercises  is  strictly  the  right  of 
performing  the  trust  vested  in  his  wife,  it  being  assumed  that 
she  cannot  perform  it  consistently  with  her  situation  as  a  feme 
cove7't. 

An  administrator  cannot  sue  in  his  representative 
character  *  upon  contracts  made  after  the  death  of  the  *  136 
intestate  merely  in  the  course  of  carrying  on  the  intes- 
tate's business.  Hence  the  husband  must  sue  alone,  for  goods 
supplied  by  husband  and  wife,  in  carrying  on  the  business  of 
the  wife's  father,  whose  administratrix  the  wife  was  ;  and  the 
joinder  of  the  wife  is  improper.^ 

1  Co.  Litt.  351  ;  11  Mod.  178 ;  1  Bright  Hus.  &  Wife,  39,  40. 

2  lb. ;  Jenk.  Rep.  79 ;  Woodruffe  v.  Cox,  2  Bradf.  Sur.  153  ;  Keister  v.  Howe, 
3  Ind.  268 ;  Claussen  v.  La  Franz,  1  Iowa,  226. 

8  Scott  V.  Gamble,  1  Stockt.  218.  For  a  case  in  which  the  husband  put 
money  of  his  own  into  a  bank  where  the  wife  had  an  account  as  executrix,  see 
Lloyci  V.  Pughe,  L.  R.  8  Ch.  88. 

4  Administration  lias  been  granted  to  a  wife  living  apart  from  her  husband 
under  a  deed  of  separation  with  apt  provisions.     Goods  of  Hardinge,  2  Curt.  640. 

5  1  Salk.  282 ;  Lover  v.  Lover,  6  Jur.  156  ;  Bubbers  v.  Hardy,  3  Curt.  50 ; 
cases  cited  in  2  Redf.  Wills,  78.  As  to  the  indorsement  of  a  note  payable  to  the 
wife  as  administratrix,  see  Roberts  v.  Place,  18  N.  H.  183.  And  see  Murphree 
V.  Singleton,  37  Ala.  412.  Statutes  sometimes  require  the  husband  to  join  in 
the  wife's  bond  as  executrix.  See  Airhart  v.  Murphy,  32  Tex.  131  ;  Cassedy  v. 
Jackson,  45  Miss.  397.  Wife  made  sole  executrix  with  her  husband's  consent. 
Stewart,  In  re,  56  Me.  300. 

6  Bolingbroke  v.  Kerr,  L.  R.  1  Ex.  222. 

[139] 


*  136  HUSBAND    AND   WIFE. 

By  marriage  with,  a  female  guardian,  too,  the  husband  be- 
comes responsible  for  the  moneys  with  which  she  may  then 
or  afterwards  during  coverture  be  chargeable  in  such  capac- 
ity ;  the  responsibility  extending  while  she  continues  to  act, 
whether  it  were  proper  for  her  to  so  continue  or  not.i 

1  Allen  V.  McCuUough,  2  Heisk.  174.  A  married  woman  cannot  bind  herself 
by  her  contract  to  convey  estate  which  is  devised  to  her  m  trust  for  sale.  Avery 
V.  Griffin,  L.  R.  6  Eq.  606. 

[  140  ] 


EFFECT  OF  COVERTURE  UPON  WIFE'S  REAL  ESTATE.    *  137 


*  CHAPTER    VI.  *137 

THE    EFFECT   OF   COVERTURE   UPON    THE    WIFE's    CHATTELS    REAL 
AND    REAL    ESTATE. 

Chattels  real,  such  as  leases  and  terms  for  years,  have 
many  of  the  incidents  of  personal  property.  But  as  between 
husband  and  wife  they  differ  from  personal  chattels.  The 
title  acquired  therein  by  the  husband  is  of  a  somewhat  anoma- 
lous nature  ;  for  upon  them  marriage  operates  an  executory 
gift,  as  it  were,  the  husband's  title  being  imperfect  unless  he 
does  some  act  to  appropriate  them  before  the  wife's  death. 
He  may  sell,  assign,  mortgage,  or  otherwise  dispose  of  his 
wife's  chattels  real  without  her  consent  or  concurrence ;  ^ 
excepting  always  such  property  as  she  may  hold  by  way  of 
settlement  or  otherwise  as  her  separate  estate.^  Chattels  real, 
unappropriated  during  coverture,  vest  in  the  wife  absolutely, 
if  she  be  the  survivor.  In  all  these  respects  they  resemble 
choses  in  action.  But  if  the  husband  be  the  survivor,  such 
chattels  will  belong  to  him  jure  mariti,  and  not  as  represent- 
ing his  wife.  And  in  this  respect  they  resemble  choses  in 
possession. 

As  to  the  wife's  chattels  real,  therefore,  husband  and  wife 
are  in  possession  during  coverture  by  a  kind  of  joint  tenancy, 
with  the  right  of  survivorship  each  to  the  other ;  not,  how- 
ever, like  joint-tenants  in  general,  but  rather  under  the  title 
of  husband  and  wife  ;  since  husband  and  wife  are,  in 
contemplation  *  of  law,  but  one  person  and  incapable  *  138 
of  holding  either  as  joint-tenants  or  tenants  in  com- 
mon.^ 

1  Co.  Litt.  4G  c ;  2  Kent  Com.  134 ;  Sir  Edward  Turner's  Case,  1  Vern.  7 ; 
Whitmarsh  v.  Robertson,  1  Coll.  New  Cases,  570.  As  to  what  are  chattels  real, 
see  Schouler  Pers.  Prop.  29,  45-73. 

2  Tullett  V.  Armstrong,  4  M.  &  C.  395  ;  Draper's  Case,  2  Freem.  29 ;  Bullock 
V.  Knight,  Ch.  Ca.  26(1. 

a  2  Kent  Com.  135;  Co.  Litt.  3516;  Butler's  note  304  to  Co.  Litt.  lib.  3, 
351a. 

[141] 


*  138  HUSBAND  AND  WIFE. 

The  wife's  chattels  real  may  be  taken  on  execution  for  the 
debts  of  the  husband  while  coverture  lasts,  by  which  means 
the  title  becomes  transferred  by  operation  of  law  to  the  cred- 
itor, and  the  wife's  right,  even  though  she  should  survive  her 
husband,  is  gone.^  They  may  also  be  bequeathed  by  the  hus- 
band by  will  executed  during  marriage,  or  by  other  instru- 
rgient  to  take  effect  after  his  death  ;  with,  however,  this  result : 
that  if  the  wife  dies  first  the  bequest  will  be  effectual,  not 
having  been  subsequently  revoked  by  the  husband ;  while,  if 
the  husband  dies  first,  the  wife  will  take  the  chattel  in  her 
own  right,  unaffected  by  any  will  which  he  may  have  made, 
or  by  au}^  charge  he  may  have  created. ^ 

It  would  appear  that  any  assignment  of  a  chattel  real  by 
the  husband  will  completely  appropriate  it,  even  though  made 
without  consideration.^  And  if  a  single  Xvoman  has  a  decree 
to  hold  and  enjoy  lands  until  a  debt  due  her  has  been  paid,  — 
known  at  the  old  law  as  an  estate  by  elegit^  —  and  she  after- 
wards marries,  her  husband  may  make  a  voluntary  assignment 
so  as  to  bind  her."^  The  right  of  appropriating  the  wife's 
chattels  real  is,  therefore,  to  be  distinguished  from  the  right 
of  reducing  things  in  action  into  possession.  The  husband's 
interest  in  his  wife's  chattels  real  may  be  called  an  interest 
in  his  wife's  right,  with  a  power  of  alienation  during  cover- 
ture ;  and  an  interest  in  possession,  since  such  chattels  are 
already  in  possession,  but  lying  in  action.° 

As  the  husband  is  entitled  to  administer  in  his  wife's  right 

when  she  is  executrix  or  administratrix,  he  may  release  or 

assign  terms  for  years  or  other  chattels  real  vested  in 

*  139    her  as  *  such.^     But  if  he  be  entitled  to  a  term  of  years 

in  his  wife's  right  as  executrix  or  administratrix,  and 
have  the  reversion  in  fee  in  himself,  the  term  will  not  be 
merged  ;  for  to  constitute  a  merger  both  the  term  and  the 
freehold  should  vest  in  a  person  in  one  and  the  same  right.'^ 

1  2  Kent  Cora.  134  ;  Miller  v.  Williams,  1  P.  Wms.  268. 

2  Co.  Litt.  351  a,  466 ;  Roberts  v.  Polgrean,  1  H.  Bl.  635. 

3  Cateret  v.  Pasdiall,  3 P.  Wms.  200.     But  see  «.  to  1  P.  Wras.  380. 

4  Merriweather  v.  Brooker,  6  Litt.  256  ;  Pasciiall  v.  Thurston,  2  Ero.  P.  C.  10. 
s  Mitford  V.  Mitford,  9  Ves.  98. 

6  Arnold  v.  Bidwood,  Cro.  Jac.  318  ;  Tlirustout  v.  Coppin,  W.  Bl.  801. 

7  Co.  Litt.  338  6  ;  1  Bright  Hua.  &  Wife,  97,  and  casea  cited. 

[U2j 


EFFECT  OF  COVERTURE  UPON  WIFE'S  REAL  ESTATE.    *  139 

An  exception  to  the  husband's  right  by  sundvorship  to  his 
wife's  chattels  real  occurs  in  case  of  joint  tenancy.  If  a  single 
woman  be  joint-tenant  with  another,  then  marries  and  dies, 
the  other  joint-tenant  takes  to  the  exclusion  of  her  husband 
surviving  her :  for  the  husband's  title  is  the  newer  and  inferior 
one.^ 

Where,  during  coverture,  a  lease  for  years  is  granted  to 
the  wife,  adverse  possession,  which  commences  during  cov- 
erture, may  be  treated  as  adverse  either  to  the  wife  or  to 
the  husband.^ 

When  the  husband  succeeds  to  his  wife's  chattel  real  upon 
surviving  her,  or  appropriates  it  during  coverture,  he  takes  it 
subject  to  all  the  equities  which  would  have  attached  against 
her.  In  other  words,  being  not  a  purchaser  for  a  valuable 
consideration,  he  can  claim  no  greater  interest  than  she  had. 
Thus  where  the  wife's  chattel  interest  is  subject  to  the  pay- 
ment of  an  annuity,  the  husband  must  continue  to  make 
payment  so  long  as  the  encumbrance  lasts.  And  though  he 
may  not  in  all  cases  be  bound  on  her  covenant  to  make  new 
leases,  yet  if  he  does  so  the  equity  of  the  annuitant  will  attach 
upon  them  successively.^ 

The  law  enables  the  husband  during  coverture  to  defeat  his 
wife's  interest  by  survivorship  by  an  absolute  disposition  of 
the  whole  term,  either  with  or  without  consideration.'*  And 
the  same  rule  applies  to  the  wife's  trust  terms  as  to  her 
legal  *  terms.^  In  order  to  make  it  effectual,  the  right  *  140 
of  the  party  in  whose  favor  the  disposition  is  made 
must  commence  in  interest  during  the  life  of  the  husband  ; 
but  it  is  not  necessary  that  it  should  commence  in  possession 
during  that  period.     Thus  the  husband,  though  he  cannot 

1  Co.  Litt.  185  b. 

2  Doe  V.  Wilkins,  5  Nev.  &  M.  435. 

'  Moody  V.  Matthews,  7  Ves.  183 ;  Rowe  v.  Chichester,  Amb.  719.  On  the 
question  of  contribution  by  annuitants,  see  Winslowe  v.  Tighe,  2  Ball  &  B.  204  ; 
Hubbs  V.  Rath,  2  ib.  553. 

*  1  Bright  Hus.  &  Wife,  98 ;  Grute  v.  Locroft,  Cro.  Eliz.  287 ;  Jackson  v. 
McConnell,  19  Wend.  175. 

8  Tudor  V.  Sarayne,  2  Vern.  270  (incorrectly  reported,  according  to  note,  1 
Bright  IIus.  &  Wife,  99).  Sir  Edward  Turner's  Case,  1  Ch.  Ca.  307  ;  Packer  v. 
Windliara,  Tree,  in  Ch.  412. 

[143] 


*  140  HUSBAND   AND   WIFE. 

bequeath  these  chattels  by  will,  as  against  the  wife's  right  by 
survivorship,  may  grant  an  underlease  for  a  term  not  to  com- 
mence until  after  his  death ;  and  this  act  will  divest  the  right 
of  the  wife  under  the  original  lease  so  far  as  the  underlease  is 
prejudicial  to  such  right. ^  Nor  need  his  disposition  cover 
the  whole  chattel,  since  the  disposition  necessarily  operates 
pro  t'lnto?  Nor  need  it  be  absolute,  since  a  conditional  dis- 
position is  good  if  the  condition  subsequently  takes  effect.^ 
And  the  law  enables  the  husband  to  dispose  not  only  of  the 
wife's  interest  in  possession,  but  also  of  her  possibility  or 
contingent  interest  in  a  term,  unless  where  the  contingency 
is  of  such  a  nature  that  it  cannot  happen  during  his  life.* 

A  distinction  is,  however,  made  between  cases  where  the 
disposition  is  intended  of  the  whole  or  of  part  of  the  property, 
and  where  it  is  intended  as  a  collateral  grant  of  something 
out  of  it.  In  the  latter  case  the  transaction  will  not  bind  the 
wife,  for  if  she  survive  her  husband,  her  right  being  para- 
mount, and  her  interest  in  the  chattel  not  having  been  dis- 
placed, she  wiU  be  entitled  to  it  absolutely  free  from  such 
encumbrance.^ 

The  husband  may  by  other  acts  than  express  alienation 

divest  his  wife's  title,  and  defeat  her  rights  by  survivorship 

in  her  chattels  real.     Thus,  if  the  husband,  holding  a  term  in 

right  of  his  wife,  grant  a  lease  of  the  lands  covered 

*  141    by  the  *  term,  for  the  lives  of  himself  and  his  wife,  the 

wife's  term  would  thereby  merge,  and  her  right  in  it 
be  defeated.*^  Or  if,  while  in  possession,  under  a  lease  to 
himself  and  the  wife,  the  husband  should  accept  from  the 
lessor  a  feoffment  of  the  lands  leased,  the  term  would  be  ex- 
tinguished and  the  wife's  right  along  with  it  ;  for  the  livery 
would  amount  to  a  surrender  of  the  term.' 

1  Grute  V.  Locroft,  Cro.  Eliz.  287 ;  Bell  Hus.  &  Wife,  104,  105. 

2  Sym's  Case,  Cro.  Eliz.  33 ;  Loftris's  Case,  ib.  276 ;  Riley  v.  Eiley,  4  C.  E. 
Green,  229. 

3  Co.  Litt.  46  h.     But  see  4  Vin.  Abr.  50,  pi.  14. 

4  Doe  d.  SImw  v.  Steward,  1  Ad.  &  El.  800 ;  1  Bright  Hus.  &  Wife,  100.  And 
see  Donne  v.  Hart,  2  Russ.  &  My.  360. 

s  Co.  Litt.  184  6;  1  Bright  IIus.  &  Wife,  103. 
6  2  Roll.  Abr.  495,  pi.  50. 

1  Downing  v.  Seymour,  Cro.  Eliz.  012.  And  see  Lawes  v.  Lumpkin,  18  Md. 
334. 

[  144  ] 


EFFECT  OF  COVERTURE  UPON  WIFE'S  REAL  ESTATE.   *  141 

On  the  other  hand,  there  are  acts  by  the  husband,  which, 
although  they  amount  to  the  exercise  of  an  act  of  ownership, 
yet,  as  they  do  not  pass  the  title,  will  not  defeat  the  wife's 
right  by  survivorship.  An  instance  of  the  latter  is  that  of 
the  husband's  mortgage  of  his  wife's  chattels  real ;  or,  what 
is  the  same  thing  in  equity,  a  covenant  to  mortgage.  This  is 
in  reality  a  disposition  as  security,  and  until  breach  of  con- 
dition the  mortgagee  has  no  further  title.  But,  in  order  to 
protect  the  mortgagee's  rights,  equity  treats  the  mortgage  or 
covenant  as  good  against  the  wife  to  the  extent  of  the  money 
borrowed ;  that  once  paid  the  chattels  will  continue  hers.^ 
After  breach  of  condition,  the  mortgagee's  estate  becomes 
absolute  ;  or,  at  least,  he  can  make  it  so  by  foreclosure  ;  and 
the  alienation  of  the  term  being  then  completed  at  law,  the 
wife's  legal  right  by  survivorship  is  defeated ;  subject,  how- 
ever, to  the  equity  of  redemption,  where  the  husband  has  not 
otherwise  disposed  of  that  hkewise.^  So,  too,  transactions, 
not  constituting  mortgages,  in  the  ordinary  sense  of  the  term, 
may  yet  be  so  construed  in  equity  where  such  was  their  sub- 
stantial purport.  And  while  the  intention  of  the  husband  to 
work  a  more  complete  appropriation  will  be  justly  regarded 
by  the  court,  the  mere  circumstance  of  a  proviso  in  the 
conveyance  for  redemption,  pointing  to  a  mode  of  reconvey- 
ance not  in  conformity  with  the  original  title,  will  not, 
*  it  seems,  debar  the  wife  from  asserting  her  rights  by  *  142 
survivorship.^ 

Among  the  miscellaneous  acts  of  the  husband,  which  will 
defeat  the  wife's  survivorship  to  her  chattels  real,  are  the  fol- 
lowing :  A  disseverance  of  his  wife's  joint  tenancy  during 
coverture.'*  An  award  of  the  term  to  the  husband,  if  carried 
into  effect.^     The  husband's  criminal  acts;  such  as  attainder.^ 

1  Bates  V.  Dandy,  2  Atk.  207  ;  Bell  Hus.  &  Wife,  107  ;  1  Bright  Hus.  &  Wife, 
106. 

-  See  Pitt  V.  Pitt,  T.  &  R.  180 ;  1  Prest.  on  Estates,  345. 

3  Clark  V.  Burgh,  9  Jur.  679.  See  In  re  Betton's  Trust  Estates,  L.  R.  12  Eq. 
553  ;  Pigott  v.  Pigott,  L.  R.  4  Eq.  449. 

*  Co.  Litt.  185  i ;  Plow.  Cora.  418. 

6  Oglander  v.  Baston,  1  Vern.  396 ;  note  of  Jacob  to  1  Roper  Hus.  &  Wife, 
185,  and  cases  commented  upon. 

«  Co.  Inst.  351  a;  4  Bl.  Cora.  387  ;  Steed  v.  Cragh,  9  Mod.  4?. 

10  [  145  ] 


*  142  HUSBAND  AND  WIFE. 

So  too  his  alienage.^  Lord  Coke  considered  that  ejectment 
recovered  by  the  husband  in  his  own  name,  would  work  ap- 
propriation ;  but  he  was  probably  in  error.^  Waste  operates 
as  a  forfeiture  of  a  term.-^  And  finally,  the  husband's  cred- 
itors may  sell  the  wife's  chattels  real  on  execution,  and  by 
their  own  act  determine  her  interest  altogether.^  But  it  is 
held  that  the  wife's  survivorship  is  not  defeated  by  such  acts 
of  her  husband  as  erecting  buildings  on  the  leasehold  j^rem- 
ises  ;  and  making  a  mortgage,  sale,  or  lease  of  part  bars  the 
wife  only  so  far.^ 

Now,  as  to  the  wife's  real  estate.  By  marriage,  the  hus- 
band becomes  entitled  to  the  usufruct  of  all  real  estate  owned 
by  the  wife  at  the  time  of  her  marriage,  and  of  all  such  as 
may  come  to  her  during  coverture.  He  is  entitled  to  the 
rents  and  profits  during  coverture.  His  estate  is,  therefore, 
a  freehold.  But  it  will  depend  upon  the  birth  of  a  child 
alive  during  coverture,  whether  his  estate  shall  last  for  a 
longer  term  than  the  joint  lives  of  himself  and  wife,  or  not. 
In  the  event  of  such  birth,  his  interest  lasts  for  his  own  life, 
whether  his  wife  dies  before  him  or  not.  If  there  be  no  child 
born  alive,  his  interest  lasts  only  so  long  as  his  wife  lives. 
In  either  case,  he  has  not  an  absolute  interest,  but  only  an 
estate  for  life,  and  his  right  is  that  of  beneficial  enjoyment. 
When  his  estate  has  expired,  the  real  estate  vests  abso- 

*  143    lutely  in  *  the  wife  or  her  heirs,  and  the  husband's 

relatives  have  no  further  concern  with  it.^ 
While,  therefore,  the  husband  has  the  beneficial  enjoyment 
of  his  wife's  freehold  property  during  coverture,  at  the  com- 
mon law,  the  ownership  remains  in  the  wife.     Herein,  her 

1  2  Bl.  Com.  421  ;  4  Bl.  Com.  387.     See  p.  145. 

2  See  Jacob's  note  to  1  Roper  Hus.  &  Wife,  185  ;  Co.  Litt.  466  ;  4  Vin.  Abr. 
50,  pi.  18. 

3  Co.  Litt.  351. 

<  Miles  V.  Williams,  1  P.  Wms.  258;  Co.  Litt.  351. 

5  Riley  v.  Riley,  4  C.  E.  Green,  229. 

t>  Co.  Litt.  351  a;  2  Kent  Com.  130  ;  1  Bac.  Abr.  286  ;  Junction  Railroad  Co. 
V.  Harris,  9  Ind.  184.  The  husband's  rights  and  Habilities  attach  to  property 
bought  by  himself  and  held  in  his  name  as  trustee  for  his  wife  ;  I'liaris  v.  Leach- 
man,  20  Ala.  662.  But  not,  as  will  be  seen  liereafter,  to  his  wife's  separate  real 
estate. 

[146] 


EFFECT  OF  COVERTURE  UPON  WIFE'S  REAL  ESTATE.  *  143 

right  becomes  suspended,  not  extinguished,  by  her  marriage. 
The  inheritance  is  in  her  and  her  heirs.  Consequently,  the 
husband  may  sue  in  his  own  name  for  injury  to  the  profits  of 
his  wife's  real  estate  ;  as  where  growing  crops  are  destroyed 
or  carried  off;  for  this  relates  to  his  usufructuary  interest. 
But  for  injuries  to  the  inheritance,  such  as  trespass,  by  cut- 
ting trees,  burning  fences,  and  pulling  down  houses,  and 
generally  in  actions  for  waste,  the  wife  must  be  joined  ;  and  if 
the  husband  dies  before  recovering  damages,  the  right  of  action 
survives  to  the  wife.  And  if  the  wife  survives  her  husband, 
she  may  commence  such  suits  without  joining  his  personal 
representatives.^  But  the  husband  cannot  prosecute  such  an 
action  alone  after  his  wife's  death  during  the  pendencj^  of  the 
suit.2 

Besides  the  rents  and  profits  during  coverture,  the  husband, 
if  the  survivor,  is  entitled  to  all  arrears  accrued  up  to  the 
time  of  his  wife's  death.  Such  property  is  not  treated  like 
the  wife's  ehoses  in  action,  not  reduced  to  possession.  Accord- 
ingly, he  may  maintain  suit  after  coverture  to  recover  all 
rents  and  profits  which  had  accrued  while  coverture  lasted. 
And  where  the  wife  joins  her  husband  in  a  lease,  the  covenant 
for  jjayment  of  rent  is  for  the  husband's  benefit  alone  while 
the  usufruct  continues.'^  But  it  would  appear  to  be  otherwise 
where  rent  is  reserved  to  husband  and  wife,  and  her  heirs 
and  assigns.'* 

*  In  all  cases,  emljlements  or  growing  crops  go  to  the    *  144 
husband  or  his  representatives  at  the  termination  of  his 
estate.^     This  rule  was  extended  at  the  common  law  to  cases 

1  2  Kent  Com.  131 ;  Weller  v.  Baker,  J  Wils.  423,  424  ;  Beaver  v.  Lane,  2 
Mod.  217;  Bac.  Abr.  tit.  Baron  &  Feme,  K. ;  1  Chit.  PI.  (Gtli  Am.  ed.)  85;  1 
Bl.  Com.  302;  Illinois,  &c.,  R.  R.  Co.  v.  Grable,  46  111.  445;  Tliaciier  c.  Pliin- 
ney,  7  Allen,  146.  Tlie  husband  can  sue  alone  for  digging  up  tiie  soil  and  car- 
rying it  away.     Tallmadge  v.  Grannis,  20  Conn.  296. 

'^  Buck  V.  Goodrich,  38  Conn.  37. 

3  1  Washb.  Real  Prop.  44 ;  Co.  Litt.  351  b ;  Jones  v.  Patterson,  11  Barb.  572. 

*  Hill  V.  Saunders,  4  B.  &  C.  529.  The  wife  need  not  be  joined  in  such 
suits  for  rent.  Clapp  v.  Houghton,  10  Pick.  463  ;  Beaver  v.  Lane,  2  .Mod.  217  ; 
Shaw  V.  Partridge,  17  Vt.  626;  Edrington  v.  Harper,  3  J.  J.  Marsh.  360;  Bai- 
ley V.  Duncan,  4  Monr.  260. 

5  Reeve  Doni.  Rel.  28,  and  cases  cited ;  Weems  v.  Bryan,  21  Ala.  302;  Spen 
cer  V.  Lewis,  1  Houst.  223. 

[147] 


*144  HUSBAND  AND  WIFE. 

of  divorce  causa  jjrecontr actus. ^  But  it  does  not  apply  to 
divorce  for  the  husband's  misconduct  under  modern  statutes.^ 
The  husband's  lease  in  right  of  his  wife  operates  so  far  in  the 
tenant's  favor  as  to  entitle  the  latter  to  emblements,^  The 
rule  is  the  same  whether  the  husband  be  tenant  by  curtesy  or 
not.  No  action,  therefore,  can  be  maintained  by  the  wifein 
such  cases. 

The  husband's  interest  in  his  wife's  real  estate  is  liable  for 
his  debts,  and  may  be  taken  on  execution  against  him.  But 
nothing  more  than  the  husband's  usufruct  is  thereby  affected  ; 
nor  can  the  attachment.or  sale  affect  the  wife's  ultimate  title.* 
The  rule  in  Massachusetts  is  to  allow  the  purchaser  to  take 
the  rents  and  profits  for  a  definite  period,  or  the  whole  life- 
estate,  at  an  appraisal  of  the  value  founded  on  a  proper 
estimate  of  the  probabihty  of  human  life.  But  where  the 
whole  life- estate  is  of  more  A^alue  than  the  amount  of  the 
execution,  the  more  proper,  and  perhaps  the  only  mode,  is 
the  former.^  It  has  been  held  that  the  husband,  under  a 
bona  fide  deed  of  separation,  without  trustees,  executed  before 
judgment,  may  relinquish  to  his  wife  all  interest  in  her  lands, 
and  thus  avoid  the  demands  of  his  creditors  upon  the 
*  145  property,  even  though  an  annuity  be  *  reserved  to  him- 
self.^ And  it  is  certain  that  the  sheriff's  deed  cannot 
convey  a  greater  interest  than  the  defendant  has  at  the  time 
of  attachment  or  of  levy  and  sale."  Therefore,  where  a  statute 
allows  the  husband  a  distributive  share  in  his  wife's  lands  in 

1  Orland's  Case,  5  Coke,  116  a. 

-  See  Vincent  v.  Parker,  7  Paige,  65,  per  Chancellor  Walworth ;  Jeiiney  v. 
Gray,  5  Oliio  St.  45. 

3  Rowney's  Ca.se,  2  Vern.  322;  G(jfilcl  v.  Webster,  1  Vt.  409. 

4  2  Kent  Com.  131 ;  Babb  v.  Perley,  1  Me.  6  ;  Mattocks  v.  Stearns,  9  Vt.  326 ; 
Perkins  v.  Cortrell,  15  Barb.  446  ;  Brown  v.  Gale,  5  N.  H.  416  ;  Canby  v.  Porter, 
12  Ohio,  79 ;  Williams  v.  Morgan,  1  Litt.  168  ;  Nichols  v.  O'Neill,  2  Stockt.  88; 
Montgomery  v.  Tate,  12  Ind.  615 ;  Sale  v.  Saunders,  24  Miss.  24;  Cheek  v. 
Waldrum,  25  Ala.  152 ;  Schneider  v.  Starke,  20  Mis.  269.  But  see  Jackson  v. 
Suffern,  19  Wend.  175.  And  see  Rice  v.  Hoffman,  35  Md.344,  as  to  the  liability 
extending  to  the  imsband's  interest  as  tenant  by  the  curtesy. 

5  Litclifield  V.  Cad  worth,  15  Pick.  23. 

6  Bonshuigh  v.  Bonslaugh,  17  S.  &  R.  361.  But  see  Bowyer's  Appeal,  21 
Penn.  St.  210. 

^  Williams  v.  Amory,  14  Mass.  20;  Johnson  v.  Payne,  1  Hill,  111;  Rabb  v. 
Aiken,  2  McC.  Ch.  119. 

[148] 


EFFECT  OF  COVERTURE  UPON  WIFE'S  REAL  ESTATE.  *  145 

the  event  of  his  survivorship,  no  such  interest  passes  to  the 
purchaser  of  lands  sold  on  execution  for  his  debts  during  her 
life.^  Since  the  husband's  life-interest  is  liable  for  his  own 
debts,  it  is  liable  for  the  debts  of  the  wife  dum  sola?  The 
creditors  of  the  husband  cannot  attach  mere  contingencies  of 
th«  wife  which  cannot  happen  before  the  death  of  either.^ 
But  it  is  held  in  Pennsylvania  that  where  a  husband  has  con- 
veyed his  life-estate  in  fraud  of  his  creditors,  they  may  levy 
upon  the  growing  crops.* 

Where  the  husband  was  an  alien,  he  could  not  acquire  an 
interest  in  his  wife's  real  estate  at  the  common  law.°  But 
the  disability  is  now  removed  in  great  measure  by  statute.*^ 

So  at  the  common  law,  attainder  of  treason  or  other  felony 
worked  a  forfeiture  or  escheat  of  real  estate  to  the  govern- 
ment. And  corruption  of  blood  affected  the  inheritance  in 
such  cases.  But  as  regards  the  wife's  real  estate,  nothing 
more  could  be  taken  than  the  husband's  life-interest ;  the  free- 
hold continued  in  the  wife  as  before.  For  the  same  reason, 
where  the  wife  was  at  common  law  attainted  of  felony,  the 
lord  might  enter  to  the  lands  by  escheat,  and  eject  the 
husband  whenever  the  crown  *  had  had  its  prerogative  *  146 
forfeiture  of  a  year  and  a  day's  waste.'''  The  common 
law  of  attainder  is  of  no  force  in  this  country  so  far  as  for- 
feiture and  corruption  of  blood  is  concerned  ;  but  it  probably 
applies  to  the  husband's  life-interest  in  his  wife's  lands.^ 

The  husband  alone  has  power  at  common  law  to  bind  or 
alienate  the  wife's  real  estate  during  coverture.  This  right 
lasts,  at  any  rate,  during  their  joint  lives  (provided  the  parties 

1  Starke  v.  Harrison,  5  Rich.  7. 

2  Moore  v.  Richardson,  37  Me.  438. 

'  Hornsby  v.  Lee,  2  Madd.  Ch.  16  ;  Allen  v.  Scurry,  1  Yerg.  36  ;  Sale  v. 
Saunders,  24  Miss.  24.     And  see  Osborne  v.  Edwards,  3  Stockt.  73. 

*  Stehman  v.  Huber,  21  Penn.  St.  260.  See  p.  165,  as  to  claims  for  improve- 
ments on  the  wife's  land. 

■'  1  Washb.  Real  Prop.  48,  and  cases  cited  ;  Bell  Hus.  &  Wife,  151 ;  Co.  Litt. 
31  h  ;  Menvill's  Case,  13  Co.  293  ;  2  Bl.  Com.  293 ;  2  Kent  Com.  39-75. 

6  See  note  to  1  Washb.  Real  Prop.  49,  giving  statutory  changes.  And  see 
Bell  Hus.  &  Wife,  151,  241.  Stat.  7  &  8  Vict.  c.  66,  removes  disabilities  as  to 
dower  for  the  most  part. 

T  Bell  Hus.  &  Wife,  149,  150 ;  2  Bl.  Com.  253,  254.  As  to  tlie  wife's  right  of 
dower  in  such  cases,  see  2  Bl.  Com.  253,  and  notes  by  Chitty  and  others. 

8  See  Const.  U.  S.  Art.  III.  §  3. 

[149] 


*  146  HUSBAND  AND  WIFE. 

are  not  in  the  mean  time  divorced)  ;  and  if  the  husband 
becomes  a  tenant  by  curtesy,  it  lasts  during-  his  whole  life. 
But  the  husband's  power  is  commensurate  with  his  estate. 
He  cannot  encumber  the  property  beyond  the  period  of  his 
life-interest,  nor  prevent  his  wife,  if  she  survives  him,  or  her 
heirs  after  his  death,  from  enjoying  the  property  free  from  all 
encumbrances  which  he  may  have  created.^  Under  the  ancient 
law  of  tenures,  the  husband  could  transfer  the  property  so  as 
to  vest  it  in  the  grantee,  subject  to  the  wife's  entry  by  writ 
cui  in  vita;  for  his  act  amounted  to  a  discontinuance.  Statute 
32  Hen.  VIII.  c.  28,  was  remedial  in  its  effect,  so  far  as  to 
give  the  wife  her  writ  of  entry,  notwithstanding  her  hus- 
band's convej^ance.  Copyhold  lands  followed  a  different  rule, 
not  being  considered  within  the  letter  or  the  equity  of  this 
statute.  But  b}'  the  more  recent  statutes  of  3  &  4  Will.  IV. 
c.  27,  and  c.  74,  and  8  &  9  Vict.  c.  106,  fines  and  recov- 
eries had  been  abolished  and  feoffments  deprived  of  theii* 
tortious  operation ;  and  it  is  enacted  that  no  discontinuance 
or  Avarranty  made  after  the  31st  day  of  December,  1833,  shall 
defeat  any  right  of  entry  or  action  for  the  recovery  of  land. 
At  the  present  day  there  is,  therefore,  no  mode  of  conveyance 
in  the  English  law  by  which  the  husband  can  convey  more 
than  his  own  estate  in  his  wife's  lands.^ 

These  latter  statutes  are  not,  per  se,  of  force  in  this  country, 
for  they  Avere  passed  in  England  after  the  colonization  of 
*  147  America.  *  But  the  same  result  has  been  very  generally 
reached  in  this  country  through  a  different  process.  In 
Massachusetts,  the  statute  of  32  Hen.  VIII.  is  still  in  force  as 
a  modification  and  amendment  to  the  common  law.^  In  other 
States,  ejectment  or  other  summary  process  may  be  resorted 
to.*  The  universal  doctrine,  whatever  may  be  the  form  of 
remedy,  prevails,  that  the  husband  can  do  no  act  nor  make  any 
default  to  prejudice  his  wife's  inheritance.     And  while  his 


1  2  Kent  Com.  133. 

2  1  Bright  Has.  &  Wife,  162-168,  and  authorities  cited;  Bell  Hus.  &  Wife, 
195;  Robertson  v.  Norris,  11  Q  B.  916. 

'  3  Bruce  v.  Wood,  1  Met.  542. 
*  Miller  v.  Shackleford,  i  Dana,  264;  N.  Y.  Rev.  Stats.  4th  ed.vol.  2,  p.  303; 
2  Kent  Com.  133,  n. 

[  1.50  ] 


EFFECT  OF  COVERTURE  UPON  WIFE'S  REAL  ESTATE.  *  147 

own  alienation  passes  his  life-estate,  it  can  do  no  more  ;  and 
the  wife,  notwithstanding,  may  enter  after  his  death  and  hold 
possession.^ 

So  far  as  the  effect  of  the  husband's  lease  was  concerned, 
the  statute  32  Hen.  VIII.  c.  28,  changed  the  old  common 
law.  By  this  statute,  husband  and  wife  are  permitted  to 
make  a  joint  lease  of  the  wife's  real  estate  for  a  term  not  ex- 
ceeding three  lives  or  twenty-one  years.  There  were,  how- 
ever, some  restrictions  placed  upon  the  operation  of  this 
statute.  Thus  it  was  further  declared  that  things  which  lie 
in  grant,  such  as  franchises,  should  be  excepted;  though 
tithes  followed  the  general  principle.  And  the  old  lease  must 
have  been  surrendered  either  in  writing  or  by  operation  of 
law  within  one  year  from  making  the  new  lease.  Propert}^ 
in  possession  might  be  leased  under  the  statute,  but  not  prop- 
erty in  reversion.  The  lease  would  not  exempt  the  tenant 
from  responsibility  for  waste.  And  the  rent  reserved  should 
not  be  less  than  the  average  rent  of  the  preceding  twenty 
years.  This  statute  has  been  strictly  construed  both  in  the 
common  law  and  equity  courts  of  England.^ 

But  the  husband's  lease  of  the  wife's  lands,  whether  alone 
or  jointly  with  her,  may  be  good  at  the  common  law,  though 
not  made  in  compliance  with  the  statute.  In  such 
case,  the  wife  *  may  affirm  or  disaffirm  the  lease  at  the  *  148 
expiration  of  coverture.  And  the  same  right  may  be 
exercised  by  her  issue,  or  by  others  claiming  under  her  or  in 
privity  with  her.  So,  too,  where  she  marries  again  after  her 
husband's  death,  her  second  husband  has  the  privilege  of 
election  in  her  stead.  But  one  who  claims  by  paramount  title 
to  the  wife,  as,  for  instance,  a  joint-tenant  surviving  her,  can- 
not exercise  this  right.'^ 

Some  acts  of  the  wife,  on  being  released  from  coverture, 
will  amount  to  an  affirmance  of  her  husband's  informal  lease. 

1  2  Kent  Com.  133,  ». ;  1  Washb.  Real  Prop.  279 ;  Butterfield  v.  Bcall,  3 
Ind.  203 ;  Huflf  v.  Price,  50  Mis.  228. 

•^  Bell  Has.  &  Wife,  179-181  ;  1  Bright  Hus.  &  Wife,  193-219 ;  Darlington  v. 
Pulteny,  Cowp.  267. 

a  Bell  Hus.  &  Wife,  175, 177  ;  Jeffrey  v.  Guy,  Yelv.  78  ;  Smalman  v.  Agborow, 
Cro.  Jac.  417  ;  Anon.,  2  Dyer,  159.  See  also  Tolcr  v.  Slater,  L.  K.  3  Q.  B.  42, 
where  the  lessee  was  held  bound  on  his  covenant  to  pay  rent. 

[151] 


*  148  HUSBAND   AND   WIFE. 

Thus  acceptance  of  rent  from  the  tenant,  after  her  husband's 
death,  will  confirm  the  lease. ^  But  parol  leases  of  the  wife's 
real  estate  are  affected  by  the  statute  of  frauds ;  and  not  even 
acceptance  of  rent  can  bind  the  wife  surviving :  the  lease 
will  be  treated  as  utterly  void  at  the  husband's  death,  and  not 
voidable  only.^  Whether  acceptance  of  rent  by  the  wife  after 
the  husband's  death,  would  confirm  a  lease  in  writing,  made 
by  the  husband  alone,  is  a  question  on  which  the  authoiities 
are  not  agreed.^ 

A  distinction,  however,  is  sometimes  made  between  leases 
for  life  and  leases  for  terms  of  years,  when  made  by  the  hus- 
band alone.  The  former,  it  is  said,  being  freehold  estates  and 
commencing  by  livery  of  seisin,  could  only  be  avoided  by 
entry ;  while  the  latter  became  void  absolutely  on  the  hus- 
band's death.  But  according  to  the  better  authority  both 
kinds  of  leases  follow  the  same  principle,  and  are  not  void 
but  voidable  at  the  husband's  death.^ 

*  149        *  The  husband's  mortgage  of  his  wife's  real  estate  is 

effectual  to  the  same  extent  as  his  absolute  convey- 
ance ;  that  is  to  say,  it  will  operate  upon  his  life-estate  or  the 
joint  life-estate  of  himself  and  his  wife,  as  the  case  may  be, 
and  no  further.  And  his  lease  of  the  wife's  lands  for  a  term 
of  years  for  the  purpose  of  creating  an  encumbrance  in  the 
nature  of  a  mortgage,  is  treated  in  equity  as  a  mortgage  ;  and 
the  wife's  acceptance  of  rent  after  his  death,  cannot  make 
such  a  lease  other  than  void  on  the  termination  of  his  life- 
estate.^ 

1  Doe  V.  Weller,  7  T.  R.  478. 

2  Bell  Hus.  &  Wife,  178.     And  see  Winstell  v.  Hehl,  6  Bush,  58. 

3  Bell  Hus.  &  Wife,  177,  and  cases  cited;  Preamble  to  Stat.  32  Hen.  8,  c. 
28 ;  Jordan  ).-.  Wikes,  Cro.  Jac.  332 ;  Bac.  Abr.  Leases  C.  1.  See  Wolton  v. 
Hele,  2  Saund.  180,  7i.  10;  Bro.  Abr.  Acceptance,  1 ;  Dixon  v.  Harrison,  Vaugh. 
40  ;  Goodright  v.  Straphan,  1  Cowp.  201 ;  Perry  v.  Hindle,  2  Taunt.  180  ;  Hill  v. 
Saunders,  2  Bing.  112. 

*  Bell  Hus.  &  Wife,  177,  178,  and  cases  cited ;  contra,  notes  to  2  Kent  Com. 
133,  and  authorities  referred  to,  including  note  of  Sergt.  Williams  to  Wolton  v. 
Hele,  supra. 

5  Bell  Hus.  &  Wife,  193,  194;  Goodright  v.  Straphan,  1  Cowp.  201 ;  Drybutter 
V.  Bartholomews,  2  P.  Wms.  127.  The  husband's  mortgage,  in  this  country  also, 
passes  only  his  life-estate,  under  the  like  circumstances.  Miller  v.  Shackleford, 
3  Dana,  291 ;  Barber  v.  Harris,  15  Wend.  615 ;  Railroad  Co.  v.  Harris,  9  Ind. 
184 ;  Kay  v.  Whittaker,  44  N.  Y.  505. 

[152] 


EFFECT  OF  COVERTURE  UPON  WIFE'S  REAL  ESTATE.  *  149 

If  a  liusljand  mortgage  the  legal  interest  in  a  term  of  years, 
belonging  to  him  in  right  of  his  Tvife,  on  a  claim  to  foreclose 
this  mortgage  against  the  husband  and  wife  as  defendants,  no 
equity  for  a  settlement  upon  the  wife  arises.^ 

The  wife's  remedy  for  waste  deserves  a  passing  notice. 
Waste  consists  in  such  acts  done  by  a  tenant  for  life  or  years 
to  the  estate  he  holds,  as  injure  or  impair  the  inheritance. 
Since  the  husband  holds  his  wife's  real  estate  as  a  life-tenant 
only,  it  would  seem  on  principle  that  he  ought  to  be  held 
liable  for  waste  like  other  life-tenants.  A  difficulty  occurs, 
however,  in  applying  the  remedy ;  fj,nd  since  the  common-law 
action  of  waste  is  founded  on  the  privity  of  parties  competent 
to  sue  one  another,  no  such  suit  can  be  technically  main- 
tained as  between  husband  and  wife.^  But  if  the  husband 
conveys  to  a  third  party,  and  such  third  part}^  commits  waste, 
the  action  will  lie.  So  when  waste  is  committed  by  the  hus- 
band's creditor  who  has  taken  his  freehold  interest  on  execu- 
tion.3  As  the  husband  cannot  commit  waste,  it  follows  that 
he  cannot  sell  growing  timber  on  her  land  except  to  a  very 
limited  extent.*  The  heir  of  the  wife  can  sue  the  husband  for 
waste  ;  though  it  would  seem  that  he  cannot  sue  the 
husband's  assignee  *  for  want  of  pri\dty.^  The  wife  *  150 
is  not  without  remedy  against  her  husband,  however, 
for  chancery  will  interfere  on  her  behalf  by  injunction,  and 
stop  him  from  committing  waste  upon  her  land  ;  and  this  is 
now  the  usual  remedy  against  life-tenants.*^  And  at  the 
common  law  the  husband  was  said  to  forfeit  his  term  by  such 
misconduct.'^ 

The  husband  may  dissent  from  a  purchase,  gift,  or  devise 
of  real  estate  to  his  wife  during  coverture ;  since  otherwise 
he  might  be  made  a  life-tenant  to  his  own  disadvantage.  But 
by  such  dissent  he  cannot  and  ought  not  to  defeat  her  ulti- 

1  Hill  r.  Edmonds,  15  E.  L.  &  Eq.  280. 

2  2  Kent  Com.  131,  132;  1  Washb.  Real  Prop.  118-124;  1  Bright  Hus.  & 
Wife,  110. 

3  Babb  i\  Perley,  1  Me.  6 ;  Mattocks  v.  Stearns,  9  Vt.  326. 

*  Stroelje  v.  Felil,  22  Wis.  337 ;  Porch  v.  Fries,  3  C.  E.  Green,  204. 

5  Walker's  Case,  3  Coke,  59  ;  Bates  v.  Shraeder,  13  Johns.  260. 

6  See  1  Washb.  Real  Prop.  125;  lb.  281. 

7  Co.  Litt.  351 ;  1  Bright  Hus.  &  Wife,  110,  169. 

[153] 


*150  HUSBAND   AND   AVIFE. 

mate  title  as  heir.^  Nor  on  principle  should  he  be  permitted 
to  dissent  to  any  purchase,  gift,  or  devise  to  the  wife's  separate 
use,  by  the  terms  of  which  his  own  interest  as  life-tenant  is 
legally  excluded.  Subject  to  the  husband's  dissent  and  the 
wife's  disagreement  after  her  coverture  ends,  a  conveyance  to 
the  wife  in  fee  is  always  good.^ 

If  the  real  estate  of  the  wife  be  converted  into  personalty 
during  her  life  by  a  voluntary  act  of  the  parties,  the  proceeds 
become  personal  estate,  and  the  husband  may  reduce  into  his 
own  possession  or  otherwise  take  the  proceeds.  This  principle 
has  already  been  noticed.^  But  where  conversion  takes  place 
by  act  of  law,  independently  of  husband  and  wife,  the  rule  is 
not  so  clear.  In  New  York,  however,  it  is  held*  that  where 
the  real  estate  of  a  married  woman  has  been  converted  into 
personalty  by  operation  of  law  during  her  lifetime,  it  will  be 

disposed  of  by  a  court  of  equity  after  her  death  in  the 
*  151    same  *  manner  as  if  she  had  herself  converted  it  into 

personal  property  previous  to  her  death.^ 
On  the  other  hand,  the  rule  is  announced  that  where  a  mar- 
ried woman  is  entitled  to  a  legacy,  and  land  is  given  her  in 
lieu  thereof,  the  husband  having  effected  no  prior  reduction 
of  the  legacy,  it  is  to  be  held  as  hers  and  for  her  sole  benefit. 
A  case  of  this  sort  was  lately  decided  in  Pennsylvania ."^    And 

1  Co.  Litt.  3  a  ;  1  Dane  Abr.  388 ;  4  ib.  397  ;  1  Waslib.  Real  Prop.  280. 

2  Co.  Litt.  3  a,  356  6 ;  2  Bl.  Com.  292,  293 ;  2  Kent  Com.  150.  The  wife's 
privilege  of  disagreement  to  purchase  extended  to  her  heirs,  ib. 

3  Supra,  p.  120.  See  Hamlin  v.  Jones,  20  "Wis.  536 ;  Watson  v.  Robertson,  4 
Bush,  37 ;  Tillman  r.  Tillman,  50  Mis.  40. 

J  Graham  v.  Dickinson,  3  Barb.  Ch.  170.  In  this  case,  Flanagan  v.  Flanagan, 
1  Bro.  C.  C.  500,  appears  to  have  been  disapproved. 

5  Graham  v.  Dickinson, 3  Barb.  Ch.  170.  See  also  Ellsworth  v.  Hinds,  5  Wis. 
613;  Jones  v.  Plummer,  20  Md.  416  ;  Osborne  v.  Edwards,  3  Stockt.  73  But  a 
husband  may  demand  and  reduce  into  possession  his  wife's  legacy,  even  tliough 
it  be  made  payable,  by  the  terms  of  a  will,  from  proceeds  of  tlie  sale  of  the  tes- 
tator's real  estate.  Thomas  v.  Wood,  1  Md.  Ch.  296.  Conversion  takes  place 
where  husband  and  wife  convey  to  trustees  to  sell  and  dispose  for  payment  of 
debts,  balance  to  be  paid  them  as  they  shall  direct  or  appoint.  Siter  v.  McClan- 
achan,  2  Gratt.  80. 

6  Davis  V.  Davis,  46  Penn.  St.  342.  And  see  Shallenberger  r.  Ashworth,  25 
Penn.  St.  152 ;  Kempe  v.  Pintard,  32  Miss.  324.  But  see  Brvis'  Appeal,  60 
Penn.  St.  118,  as  to  female  ward's  real  estate  treated  as  personalty,  the  guar- 
dian's mere  change  of  investment  having  effected  no  conversion  of  the  fund. 

[154] 


EFFECT  OF  COVERTURE  UPON  WIFE'S  REAL  ESTATE.  *  151 

it  is  held  that  land  jiurchased  by  a  married  woman  with  the 
proceeds  of  a  legacy  which  the  husband  has  declined  to 
reduce  into  possession,  is  not  liable  for  the  husband's  debts.^ 
Where  a  husband  is  in  possession  of  land  with  a  claim  of 
title,  his  title  will  not  be  affected  by  the  act  of  a  third  person 
who  pretends  to  put  his  wife  into  possession.^  But  the  rule 
seems  to  be  general  that  the  husband's  marital  rights  do  not 
attach  to  property  which  is  in  the  actual  and  rightful  posses- 
sion of  another,  and  of  which  he  cannot  obtain  possession 
during  coverture  without  becoming  a  trespasser  ;  notwith- 
standing the  wife  may  have  rights  therein  after  his  death.^ 

By  the  old  Jaw  of  England  it  appears  that  if  a  husband 
agreed  to  convey  real  estate  belonging  to  his  wife,  he  might 
be  compelled  to  execute  the  contract  by  getting  her  to  levy  a 
fine.'^  This  rule  no  longer  holds  good  in  that  country.^ 
Even  where  *  the  agreement  has  been  made,  not  by  the  *  152 
husband,  but  by  the  wife  herself  before  her  marriage, 
the  agreement  cannot  now  be  enforced  against  the  wife.^ 
But  it  is  nevertheless  binding  upon  the  husband;  though 
where  the  purchaser  has  not  been  misled,  the  husband  cannot 
be  made  to  convey  his  partial  interest  and  submit  to  an  abate- 
ment of  the  price,  because  of  the  wife's  refusal  to  convey  her 
real  estate  which  he  and  she  had  promised  to  convey." 

An  agreement  by  a  feme  covert  for  the  sale  of  her  real 
estate,  the  same  not  being  her  separate  property,  cannot  be 
enforced  at  law  or  in  equity  against  her.®     And  Sugden  con- 

1  Coffin  V.  Morrill,  2  Fost.  352.     And  see  Sims  v.  Spalding,  aupat,  p.  131. 

2  Powell  V.  Felton,  11  Ired.  469. 

3  Hair  v.  Avery,  28  Ala.  267. 

4  2  Brijiht  Has.  &  Wife,  47;  Macq.  IIus.  &  Wife,  32. 

5  Frederick  )-•.  Coxwell,  3  Y.  &  J.  514  ;  Emery  v.  Ware,  8  Ves.  505  ;  Sug.  V. 
P.  4th  ed.  231  ;  2  Story,  Eq.  Juris.  49-53  ;  Martin  v.  Mitchell,  2  Jac.  &  W.  413 ; 
Thayer  v.  Gould,  1  Atk.  617  ;  Daniel  r.  Adams,  1  Amb.  495.  But  see  Davis  v. 
Jones,  4  B.  &  P.  267. 

6  Per  Lord  Cli.  Cottenham,  Jordan  v.  Jones,  2  Phill.  170.  See  Rowley  v. 
Adams,  6  E.  L.  &  Eq.  124. 

T  Griffin  v.  Taylor,  Tothill,  106  ;  Hall  i-.  Hardy,  3  P.  Wms.  187  ;  Morris  v. 
Stephenson,  7  Ves.  474  ;  Castle  v.  Wilkinson,  L.  R.  5  Ch.  534. 

8  Macq.  Hus.  &  Wife,  32  ;  Emery  v.  Ware,  5  Ves.  846  ;  Sug.  V.  &  P.  11th  ed. 
230. 

[155] 


*  152  HUSBAND   AND   WIFE. 

siders  it  doubtful  whether  a  married  woman,  having  a  power 
of  appointment,  can  thus  bind  herself.^  But  modern  statutes 
which  permit  the  wife  to  convey  with  the  observance  of  cer- 
tain formalities  often  permit  her  likewise  to  contract,  to  con- 
vey, and  to  encumber  her  lands. ^ 

Under  the  modern  statute  of  3  &  4  Will.  IV.  c.  74,  which 
took  effect  in  England  from  the  end  of  the  year  1833,  married 
women  are  permitted  to  alienate  or  encumber  their  real  estate 
by  conveyances  executed  with  their  husbands  pursuant  to  its 
provisions.  This  important  law,  with  its  later  modifications, 
unfettered  property  which  had  long  been  fast  bound.-^  The 
statute  requires  the  concurrence  of  the  husband  in  such  con- 
veyances :  also  that  the  wife  shall  make  an  acknowledgment 
before  certain  judicial  officers  designated  by  the  act,  apart 
from  her  husband,  to  the  effect  that  her  own  consent  is  freely 
and  voluntarily  given.* 

In  this  country  the  custom  of  a  wife's  joining  her  husband 
in  a  deed  of  conveyance  of  her  lands  has  prevailed  from 

*  153    a  very  *  early  period.     In  most,  if  not  all,  of  the  States, 

there  are  statutes  existing  as  to  the  mode  of  execution, 
which  contemplate  the  joinder  of  husband  and  wife  in  the 
conveyance,  and  an  acknowledgment  by  one  or  both  of  the 
parties.^     Some  of  the  States  require  a  separate  acknowledg- 

1  Sug.  V.  &  p.  11th  ed.  231.  But  the  wife  cannot  use  her  privilege  i:i  this 
respect  unfairly  where  the  purchaser  has  become  bound  on  iiis  part.  See  Cross 
V.  Noble,  67  Penn.  St.  74. 

2  See  next  page  ;  Dankel  v.  Hunter,  61  Penn.  St.  382.  As  to  ratification  by 
the  wife,  see  Ladd  v.  Hildebrant,  27  Wis.  135. 

a  See  8  &  9  Vict.  c.  106. 

*  See  Macq.  Hus.  &  Wife,  28-32 ;  ib.  Appendix,  1-47,  where  the  provisions 
of  this  act,  the  rules  of  court  made  in  pursuance,  and  leading  decisions  on  the 
construction  of  different  sections  are  fully  given.  And  see  In  re  Dowling,  18 
C.  B.  N.  s.  233.  We  have  not  thought  it  worth  while  to  embody  them  in  this 
work,  as  they  have  only  a  local  application.  There  are  many  cases  constantly 
arising  in  the  English  courts  as  to  the  interpretation  of  this  statute,  with  its 
amendments ;  but  they  seem  chiefly  confined  to  the  effect  of  the  wife's  acknowl- 
edgment. Previous  to  the  statute  of  3  &  4  Will.  4,  c.  74,  the  wife  could  convey 
her  interest  only  by  levying  a  fine,  which,  as  well  as  suffering  recoveries,  is 
abolished  by  that  statute.     1  Washb.  Real  Prop.  280  ;  1  Wms.  Real  Prop.  88. 

•^  1  Washb.  Real  Prop.  281,  and  cases  cited  ;  Davey  v.  Turner,  1  Dall.  15 ; 
Jackson  v.  Gilchrist,  15  Johns.  109  ;  Page  v.  Page,  6  Cush.  196 ;  2  Kent  Com. 
151-155,  and  notes,  showing  custom  in  different  States  ;  Albany  Fire  Ins.  Co.  v. 
Bay,  4  Comst.  9 ;  Ford  v.  Teal,  7  Bush,  156  ;  Mount  v.  Kesterson,  6  Cold.  452 ; 

[166] 


EFFECT  OF  COVERTURE  UPON  WIFE'S  REAL  ESTATE.  *  153 

ment  of  the  wife  apart  from  her  husband  ;  l)ut  in  this  and 
other  respects  the  laws  are  not  uniform.  There  is  less  for- 
mality in  general  than  under  the  English  statute.  Thus  then 
does  the  wife  pass  title  to  her  real  estate. 

And  since  in  the  tenure  of  lands  and  the  mode  of  convey- 
ance the  law  in  this  country  has  always  varied  considerably 
from  that  of  England,  the  rights  of  married  women  in  other 
respects  may  be  different.  Thus  it  would  seem  that  the  joint 
assent  of  husband  and  wife  in  accepting  a  title  should  be  as 
good  as  in  granting  one.^  And  in  New  Hampshire  it  is  held 
that  a  deed  to  a /erne  covert,  made  with  her  own  and  her  hus- 
band's assent,  vests  the  title  legally  in  her."'^  In  Pennsylva- 
nia, if  land  conveyed  to  her  be  encumbered,  it  passes  to  her 
subject  to  that  encumbrance.^  And  in  Vermont  it  has  been 
held  that  a  deed  of  gift  to  a  wife  during  coverture,  if  accepted 
by  her  husband,  is  accepted  by  her,  and  that  her  refusal  apart 
from  him  is  of  no  consequence.* 

But  following  the  English  doctrine,  the  wife's  agreement  to 
convey  real  estate  is  in  this  country  held  void  in  the  absence 
of  enabhng  statutes,  like  her  general  contracts,  though  made 
with  her  husband's  assent,  and  specific  performance  cannot  be 
enforced  against  her.^  So  it  has  been  held  in  Vermont  that 
the  wife  cannot,  either  separately  or  jointly  with  her 
husband,  execute  a  valid  power  of  attorney  to  *  con-    *  154 

Tourville  v.  Pierson,  39  111.  446  ;  Deery  v.  Cray,  5  Wall.  795 ;  Alabama,  &c. 
Ins.  Co.  V.  Boykin,  38  Ala.  510 ;  Lindley  v.  Smith,  46  111.  523  ;  Tubbs  v.  Gate- 
wood,  26  Ark.  128.  Tiie  privy  examination  of  a  wife  for  ascertaining  that  she 
executes  the  deed  freely  and  without  undue  influence  or  compulsion  of  her  hus- 
band is  a  feature  of  the  legislation  in  many  States  ;  and  the  validity  of  her  con- 
veyance often  turns  upon  a  compliance  with  such  a  requirement.  Tubbs  v.  Gate- 
wood,  suprit ;  Richardson  w.  Kittle,  31  Ind.  119;  McCandless  v.  Engle,  51  Peun. 
St.  309  ;  Tapley  v.  Tapley,  10  Minn.  448. 

1  1  Washb.  Real  Prop.  280. 

'^  Gordon  v.  Haywood,  2  N.  H.  402.     See  Leach  v.  Noyes,  45  N.  H.  364. 

3  Cowton  V.  Wickersham,  54  Penn.  St.  302. 

*  Brackett  v.  Wait,  6  Vt.  411. 

5  2  Kent  Com.  168 ;  Butler  v.  Buckingham,  5  Day,  492 ;  Holmes  v.  Thorpe, 
1  Halst.  Ch.  415 ;  Lane  v.  McKeen,  15  Me.  304.  We  make,  of  course,  no  refer- 
ence here  to  the  wife's  separate  proiierti/,  or  to  her  rights  under  what  are  known 
as  the  "married  women's  acts."  See  Blake  v.  Blake,  7  Iowa,  46.  A  contract 
to  convey,  made  by  husband  and  wife,  maybe  good  against  the  husband,  though 
void  as  to  the  wife.  Steffey  v.  Stertey,  19  Md.  5;  Johnston  y.  Jones,  12  B.  Monr. 
326 ;  2  Kent  Com.  168.     See  p.  152. 

[157] 


*  154  HUSBAND   AND   WIFE. 

vey  her  lands. ^  And  a  deed,  in  order  to  bind  the  wife's 
heirs,  must  have  been  delivered  as  well  as  executed,  during 
her  lifetime.-  Nor  can  her  husband,  after  her  decease,  as 
against  such  heirs,  confirm  a  conveyance  which  was  fatally 
irregular  on  her  part.^  If  her  conveyance  be  void,  a  note 
given  in"  part  payment  of  the  price  is  necessarily  without  con- 
sideration.^ 

In  some  States  the  separate  conveyance  of  a  married  woman 
or  her  execution  jointly  with  her  husband,  but  without  ob- 
servance of  the  statute  formalities,  is  void.^  But  in  others 
such  irregularities  are  not  held  fatal  to  the  instrument,  and 
she  is  bound  on  the  usual  principles,  even  though  her  deed  be 
separate  from  that  of  her  husband  and  executed  at  a  different 
time.'' 

The  deed  of  a  married  woman  as  trustee  is  good  against 
her  heirs,  claiming  adversely  to  the  trust,  even  though  given 
without  the  assent  of  her  husband.  And  a  hke  deed  executed 
under  a  power  of  attorney,  granted  by  her  alone,  is  equally 
valid .' 

So,  too,  in  this  country  a  married  woman  may  mortgage  as 

1  Sumner  v.  Conant,  10  Vt.  1.  See  Gillespie  v.  Worford,  2  Cold.  632;  Har- 
denburgh  v.  Lakin,  47  N.  Y.  109. 

Thoenberger  v.  Zook,  34  Penn.  St.  24.     But  see  Ackert  v.  Pults,  7  Barb. 
386  ;  Soraers  v.  Pumphrey,  24  Ind.  231. 

3  Dow  V.  Jewell,  1  Post.  470. 

4  Warner  v.  Croucli,  14  Allen,  163, 

5  Trimmer  «.  Heagy,  16  Penn.  St.  484;  Scarborough  v.  Watkins,  9  B.  Monr. 
540 ;  Dow  v.  Jewell,  18  N.  H.  340 ;  Kerns  v.  Peeler,  4  Jones,  226  ;  Cincinnati  v. 
Newell,  7  Ohio  St.  37 ;  Pratt  v.  Battels,  28  Vt.  685 ;  Boyle  v.  Chambers,  32 
Mis.  46;  Berry  v.  Donley,  26  Tex.  737;  Jewett  v.  Davis,  10  Allen,  68;  Baxter 
V.  Bodkin,  25  Ind.  172. 

•^  Albany  Fire  Insurance  Co.  v.  Bay,  4  Comst.  9 ;  Card  v.  Patterson,  5  Ohio, 
319;  Smith  v.  Perry,  26  Vt.  279  ;  Strickland  v.  Bartlett,  51  Me.  3.55.  The  ques- 
tion in  such  cases  is  frequently  one  of  statute  construction.  A  deed  of  real 
estate  executed  by  husband  and  wife  while  the  latter  is  under  age  may  be 
avoided  by  her  afterwards,  though  thirty  years  have  elapsed.  Yourse  v.  Nor- 
cross,  12  Mis.  549.  And  see  Porch  v.  Fries,  3  C.  E.  Green,  204.  But  not  where 
she  had  made  oath  that  she  was  of  age.  Schmitlieimer  v.  Eiseman,  7  Bush,  298. 
As  to  barring  an  estate  tail  in  case  of  a  married  woman,  see  Lippitt  v.  Huston, 
8  R.  I.  415.  The  wife's  title  to  lands  vested  in  her  under  an  unrecorded  deed 
cannot  be  divested  by  her  parol  consent  to  its  cancellation  and  a  new  deed  to 
her  husband.     Wilson  v.  Hill,  2  Beasl.  143. 

"^  Gridley  v.  Wynant,  23  How.  (U.  S.)  500;  Lew.  Trusts  and  Trustees,  89, 
90 ;  Sug.  Pow.  192,  196.     See  further  Galusha  i;.  Hitchcock,  29  Barb.  193. 

[158] 


EFFECT  OF  COVERTURE  UPON  WIFE'S  REAL  ESTATE.  *  154 

well  as  alienate  her  real  estate  by  joining  her  husband  in  the 
conveyance  and  making  due  acknowledgment,  and  this,  too, 
though  no  consideration  pass  to  her  thereby.^  Where  the  wife 
joins  her  husband  in  a  conveyance  of  the  nature  of  a  mort- 
gage, she  subjects  her  real  estate  to  the  risk  of  complete 
alienation  by  foreclosure  for  her  husband's  debt.  She 
is  estopi^ed  *by  her  own  acts  from  denying  the  validity  *  155 
of  the  mortgage.^  She  may  covenant  that  scire  facias 
may  issue  in  default  of  payment.^  She  may  create  a  valid 
power  in  the  mortgage  to  sell  in  default  of  payment.*  And 
in  general  she  may  convey  upon  condition  and  prescribe  the 
terms.  ^ 

The  rights  of  the  wife  are  nevertheless  in  such  cases  treated 
with  great  consideration  in  our  courts.^  In  all  cases  the  wife, 
who  joins  her  husband  in  a  mortgage  of  her  own  property  to 
secure  his  debts  or  the  payment  of  money  loaned  to  him,  is 
merely  the  surety  of  her  husband,  and  is  entitled  to  all  the 
rights  and  privileges  of  a  surety.  This  rule  is  well  settled." 
And  the  fact  that  by  the  terms  of  a  mortgage,  the  surplus  is 
to  be  paid  to  the  husband  after  satisfying  the  mortgage  debt, 
and  not  to  the  wife,  or  to  the  mortgagors  jointly,  will  not 
repel  the  idea  that  the  wife  was,  or  intended  to  be,  a  surety.^ 

1  Eaton  V.  Nason,  47  Me.  132 ;  Swan  v.  Wiswall,  15  Tick.  126 ;  Whiting  v. 
Stevenfs,  4  Conn.  44  ;  1  Hill.  Mort.  272 ;  Deniarest  v.  Wynkooi),  '6  Johns.  Ch. 
144;  2  Kent  Com.  167;  Siter  v.  McClanachan,  2  Gratt.  280;  Pliilbrooks  v. 
McEwen,  29  Ind.  347  ;  Moore  v.  Titman,  33  111.  358  ;  McFerrin  i'.  White,  G  Cold. 
4y9 ;  American,  «S;c.,  Ins.  Co.  v.  Ow  en,  16  Gray,  491. 

2  McCullough  V.  Wilson,  21  Penn.  St.  436. 

3  Black  V.  Galvvay,  24  Penn.  St.  18. 

*  2  Kent  Com.  167  ;  Vartie  v.  Underwood,  18  Barb.  601. 

5  Deniarest  <;.  Wynkoop,  3  Johns.  Cli.  129;  2  Kent  Com.  167.  So  too  in 
England.  Pybus  v.  Smith,  1  Ves.  Jr.  189;  Essex  i\  Atkins,  14  ib.  642.  See 
Gilbert  v.  Mayford,  1  Scam.  471 ;  Iluscombe  v.  Hare,  2  Bligh,  192  ;  Bird  v. 
Davis,  1  McCart.  467. 

•^  See  Bayler  v.  Commonwealtli,  40  Penn.  St.  37.  "Will  a  court  of  equity  in- 
terfere in  favor  of  one  who  is  an  assignee  or  covenantee,  but  not  for  value,  to 
enforce  a  wife's  engagement  to  pay  an  old  debt  of  her  husband  ?  The  answer 
is  plain.  If  it  will  not  decree  the  pertbrnuuice  of  an  ordinary  agreement,  not 
founded  on  a  valuable  consideration,  mucii  less  will  it  enforce  such  a  contract 
against  a.  feme  covert."     Per  Strong,  J.  ;  ib.  p.  44 

■J  Keimcewicz  v.  Gahn,  3  Paige,  614 ;  Hawley  v.  Bradford,  9  Paige,  200  ;  Var- 
tie V.  Underwood,  18  Barb.  561. 

8  Vartie  v.  Underwood,  18  Barb.  661.     But  see  Dean  v.  Phillips,  17  Ind.  406. 

[  i^y  ] 


*  155  HUSBAND  AND   WIFE. 

The  property  actually  mortgaged  by  her,  and  not  her  property 
in  general,  is  thus  subjected  to  the  payment  of  her  husband's 
note.i 

A  wife  is  not  bound  by  her  warranty  in  a  deed  which  she 
executes.  Nor  by  any  covenants  contained  therein.  This  is 
the  general  common-law  rule  in  England  and  America.^  For 
this  accords  with  the  principle  that  married  women  are  incapa- 
ble of  binding  themselves  by  contract.  Yet  the  husband  may 
be  bound  on  his  part,  notwithstanding.^  In  England,  where 
the  wife  formerly  passed  her  real  estate  by  suffering  a 

*  156    fine,  it  was  *  held  long  ago  that  if  the  grantee  were 

evicted  by  a  paramount  title,  the  wife  could  be  sued 
on  her  covenant  of  warranty  after  her  husband's  death.*  So, 
too,  it  was  formerly  said  that  the  wife  should  be  held  bound 
on  the  covenants  contained  in  a  lease  of  her  lands  executed 
during  coverture,  with  her  husband,  and  affirmed  by  herself 
after  his  death,  by  such  acts  as  the  acceptance  of  rent ; '"  and 
this  doctrine  is  certainly  not  unreasonable  so  far  as  a  subse- 
quent breach  of  covenant  is  concerned.  But  further  than 
this  courts  would  not  probably  go  at  this  day.  And  in  this 
country  the  wife's  covenants  in  a  conveyance  executed  jointly 
with  her  husband  are  considered  binding  upon  her  only  by 
way  of  estoppel ;  not  so  as  to  subject  her  to  suit  for  damages.^ 

1  See  Wolf  V.  Van  Metre,  23  Iowa,  397  ;  Logan  v.  Thrift,  20  Ohio  St.  62 ; 
Hobson  V.  Hobson,  8  Bush,  665.  Her  equity  will  be  barred  by  regular  sale 
under  a  power  of  sale  mortgage,  as  under  a  sale  by  decree  of  chancery.  Strother 
V.  Law,  54  111.  413.  Deed  with  certain  simultaneous  agreements  may  create,  as 
against  tlie  wife,  the  relation  of  mortgagor  and  mortgagee,  on  the  usual  prin- 
ciples. Ragan  v.  Simpson,  27  W^is.  855.  A  mortgage  executed  in  blank  by  the 
wife  was  held  to  be  invalid  in  Simms  v.  Hervey,  lU  Iowa,  273.  And  in  general 
the  statute  formalities  relating  to  conveyances  must  have  been  complied  with. 
Halt  V.  Houle,  ID  Wis.  472.  As  to  agreements  for  extension,  see  Belloc  v.  Davis, 
38  Cal.  242.  See  further  Holmes  v.  McGinty,  44  Miss.  94.  And  as  to  the  wife's 
equities  in  such  mortgage,  see  infra,  pp.  176-179. 

2  2  Kent  Com.  167,  168 ;  Fowler  v.  Shearer,  7  Mass.  21,  per  Parsons,  C.  J. ; 
Falmouth  Bridge  Co.  v.  Tibbetts,  16  B.  Monr.  637  ;  Den  v.  Demarest,  1  Zab. 
(N.  J.)  625;  Kawle  Cov.  673,  674. 

3  Buell  V.  Shuman,  28  Ind.  464. 

*  Wotton  V.  Hele,  2  Saund.  177 ;  1  Mod.  290.  Chancellor  Kent  justly  ob- 
serves that  this  was  a  very  strong  case  to  show  that  she  miglit  deal  with  her  land 
by  fine  as  &fime  sole.     2  Kent  Com.  167.  5  2  Saund.  80,  note  9. 

f"  Nash  V.  Spofford,  10  Met.  192 ;  Jackson  v.  Vanderheyden,  17  Johns.  167  J 
Dean  v.  Shelly,  57  Penn.  St.  426 ;  Hyde  v.  Warren,  46  Miss.  13. 

[160] 


EFFECT  OF  COVERTURE  UPON  WIFE'S  REAL  ESTATE.      *156 

Indeed,  in  New  York  the  wife's  privilege  in  this  respect  is 
carried  ranch  further,  for  she  is  permitted  to  execute  a  con- 
veyance of  land  with  her  husband,  containing  a  covenant  of 
warranty  on  her  part,  and  then  to  defeat  the  title  by  acquir- 
ing an  adverse  interest  afterwards.^ 

If  the  wife  at  the  time  of  her  marriage  has  a  life-estate  in 
lands,  her  husband  becomes  seised  of  such  estate  in  the  right 
of  his  wife,  and  he  is  entitled  to  the  profits  during  coverture. 
So  if  it  were  granted  to  a  trustee  for  her  own  use.  And  the 
same  rule  applies  whether  the  estate  be  for  the  life  of  the 
wife  or  of  some  other  person.  If  the  estate  be  for  the  wife's 
own  life  it  terminates  at  her  death,  and  the  husband  has  no 
further  interest  in  it.  But  if  it  be  an  estate  for  the  life  of 
another  person  who  survives  her,  the  husband  takes  the  profits 
during  the  remainder  of  such  person's  life  as  a  special  occu- 
pant of  the  land.  The  husband's  representatives  in 
either  case  *  take  crops  growing  on  the  land  at  the  *  157 
time  of  his  death.^  But  the  husband  might  at  common 
law  take  a  release  or  confirmation  to  enlarge  his  life-estate.^ 

As  concerns  the  wife's  life-estate  in  her  real  or  personal 
property,  the  English  chancery  courts  have  followed  out  ex- 
ceptions to  the  doctrines  of  equitable  assignment.'*  Not  only 
is  the  husband's  assignment  sufficient  to  bar  the  wife's  surviv- 
orship ;  but  a  purchaser  for  value  takes  it  free  from  the 
encumbrance  of  the  wife's  equit}^  to  a  settlement.  In  this 
case,  it  is  said,  equity  will  follow  the  law,  which  gives  to  the 
husband  the  power  of  dealing  with  the  income  of  his  wife's 
property,  and  will  not  put  in  force  the  rule  that  he  who  comes 
into  equity  must  do  equity,  whereby  purchasers  would  be 
involved  in  inquiries  into  the  relations  between  husband  and 
wife,  their  property,  and  means  of  maintenance.^ 

1  Jackson  v.  Vaiulerheyden,  17  Johns.  167  ;  Carpenter  v.  Schermerhorn,  2 
Barb.  Ch.  314.  And  see  Shumaker  v.  Johnson,  35  Ind.  33.  Contra,  Colcord  v. 
Swan,  7  Mass.  291;  Hill  v.  West,  8  Ohio,  225  ;  Massie  ?;.  Sebastian,  4  Bibb, 
436;  Nash  r.  Spofford,  10  Met.  192.    And  see  4  Com.  Dig.  79  6. 

2  2  Kent  Com.  134 ;  1  Bright  Hus.  &  Wife,  112,  118. 

3  Co.  Litt.  290. 

*  See  Purdew  v.  Jackson,  1  Russ.  1,  and  other  cases  commented  upon,  supra. 
5  Tidd  V.  Lister,  17  E.  L.  &  Eq.  560 ;  10  Hare,  140  ;  s.  c.  on  appeal,  3  De  G., 

11  [  161  ] 


*  157  HUSBAND   AND  WIFE. 

A  husband  acquires  by  his  marriage  the  right  to  use  and 
occupy  during  coverture  lands  held  by  his  wife  in  joint 
tenancy.^ 

M.  &  G.  868.  And  see  ;Drew  v.  Long,  21  E.  L.  &  Eq.  339 ;  Hileraan  v.  Bon- 
slaugh,  13  Penn.  St.  344.  A  wife  has  no  equity  in  arrears  of  past  income  of  real 
or  leaseliold  property  wliich  the  husband  lias  assigned  to  a  particular  assignee. 
In  re  Carr's  Trusts,  L.  R.  12  Eq.  609. 

1  Bishop  V.  Blair,  36  Ala.  80 ;  Royston  v.  Royston,  21  Geo.  161. 


[162] 


J 


EFFECT   OF   WIFE'S   DECEASE.  *  158 


*  CHAPTER   VII.  *158 

common-law  rights  and  disabilities  of  the  husband  on  his 
wife's  decease. 

On  the  death  of  the  wife,  the  husband  becomes  entitled  to 
administer  on  her  estate.  The  court  ha^dng  jurisdiction  in 
such  matters  must  issue  letters  to  him,  and  to  him  alone, 
unless  he  renounce  or  decline.  The  foundation  of  this  claim 
has  been  variously  stated ;  b}^  some  it  is  said  to  be  derived 
from  the  statute  31  Edw.  III.,  on  the  ground  of  the  husband's 
being  "  the  next  and  most  lawful  friend  "  of  his  wife  ;  while 
there  are  other  authorities  which  insist  that  the  husband  is 
entitled  at  common  law,  jure  mariti,  and  independently  of  the 
statutes.  But  this  right,  however  founded,  is  now  regarded 
in  England  as  unquestionable,  and  is  expressly  confirmed  by 
the  statute  29  Car.  II.  c.  3  (amendatory  of  statute  22  &  23  Car. 
II.  c.  10),  which  enacts  that  the  statute  of  distributions  "  shall 
not  extend  to  the  estates  of  femes  covert,  that  shall  die  intes- 
tate, but  that  their  husbands  may  demand  and  have  administra- 
tion of  their  rights,  credits,  and  other  personal  estates,  and 
recover  and  enjoy  the  same  as  they  might  have  done  before 
the  making  of  the  said  act."  ^  This  same  right  of  the  hus- 
band is  generally,  though  not  universally,  recognized  in  this 
country,  and  in  the  diiferent  States  there  are  statutes  which 
regulate  the  subject  of  administration,  not  only  as  to  the  wife 
dying  intestate,  but  as  to  all  others.^ 

To  this  rule  some  exceptions  have  been  introduced  in  later 
years,  owing  chiefly  to  the  modern  facilities  for  separa- 
tion and  *  divorce,  and  the  enlarged  capacity  given  to    *  159 
the  wife  to  act  as  iifeme  sole,  and  to  dispose  of  her  own 
property.     Thus  in  a  late  English  case  where  a  married  woman 

1  1  Wms.  Ex'rs,  4th  Am.  ed.  336  et  seq.  2  2  Kent  Com.  135  ;  ib.  410. 

[163] 


*  159  HUSBAND   AND   WIFE. 

lived  separate  from  her  liuslmnd,  after  having  obtained  an 
order  of  protection,  and  then  died,  leaving  him  and  a  minor 
son,  administration  was  granted  to  a  guardian  elected  by  the 
son,  upon  proper  security,  without  citing  the  father.^  And 
in  this  country  the  marital  rights  of  the  husband  over  his 
wife's  unadministered  property,  when  her  death  occurred 
during  a  state  of  separation  for  his  misconduct,  have  been 
sometimes  denied.^ 

Since,  as  we  have  already  seen,  the  husband  takes  absolutely 
his  wife's  personal  choses  in  possession  at  the  common  law  by 
virtue  of  the  marriage,  and,  if  he  be  the  survivor,  her  chattels 
real  likewise,  there  would  generally  appear  to  be  no  object 
gained  iu  seeldng  letters  of  administration  on  her  estate,  unless 
she  had  choses  in  action  unrecovered  at  the  time  of  her  death. 
But  a  case  might  arise  where  he  had  a  just  claim  against  her 
estate,  and  wished  to  enforce  it  by  a  sale  of  her  real  estate  as 
administrator.  Or  he  might  intend  to  prosecute  a  suit.  Or 
letters  of  administration  might  be  desirable  for  the  purposes 
of  creditors.  And  peculiar  considerations  aj)ply  sometimes  to 
what  we  term  the  wife's  separate  property  even  after  her 
death.  There  are  cases  in  these  da3^s  where  a  husband  is 
found  to  be  executor  under  his  wife's  will.-^ 

There  is  a  distinction  between  property  acquired  by  the 
husband  absolutely  by  virtue  of  marriage,  and  property  ac- 
quired in  his  representative  capacity.  The  former  is  his  own, 
free  from  all  demands  of  his  wife's  creditors.  But  the  latter 
comes  to  him  only  by  way  of  distribution,  after  payment  of  all 
just  debts  against  his  wife's  estate.  A  notable  case  in  jDoint 
is  that  of  Heard  v.  Stamford^  where  a  single  woman  con- 
tracted a  debt  for  which  she  gave  herpromissory  note  of-^£50. 
She  afterwards  married,  and  brought  to  her  husband  a  fortune 
of  X700.  On  her  death  it  appeared  that  the  husband  had 
acquired  a  portion  of  this  fortune  during  coverture  ; 

*  160    the  other  portion  was  still  *  outstanding  at  her  death 

as  a  chose  in  action^  and  could  only  be  recovered  by  the 

1  Goods  of  Stephenson,  L.  R.  1  P.  &  D.  285. 

-  Cooper  I'.  Maddox,  2  Sneed,  135.  And  see  Moyer's  Appeal,  16  Penn.  St. 
405. 

3  Martin  v.  Foster,  38  Ala.  088. 

[  164  ] 


EFFECT   OF   WIFE'S   DECEASE.  *  160 

late  husband  as  her  administrator.  Lord  Chancellor  Talbot 
decided  that  from  the  latter  portion,  after  it  had  been  recov- 
ered, the  creditor  should  be  satisfied  ;  but  that  no  claim  could 
be  enforced  against  the  former  portion. ^  Debts  contracted 
by  the  wife  during  marriage  follow  a  somewhat  different  rule 
at  the  common  law  ;  for  either  they  are  the  debts  of  the  hus- 
band or  no  legal  debts  at  all.^ 

By  the  English  statutes  of  distribution  (and  perhaps  by  the 
common  law),  not  only  is  the  husband  entitled  to  administer 
upon  his  wife's  estate  in  preference  to  all  others,  but,  subject 
to  the  payment  of  such  debts  as  we  have  described,  he  recov- 
ers her  outstanding  property  to  his  own  use  and  enjoj'ment, 
including  rights  vested  and  contingent,  and  funds  at  her  dis- 
posal during  her  lifetime  or  held  in  trust  for  her,  save  so  far 
as  he  may  be  excluded  by  the  terms  of  the  trust.  Even  if  he 
does  not  take  out  letters  of  administration,  he  is  equally 
entitled  to  the  property.^  He  is  therefore  said  to  administer 
for  his  own  benefit.  And  since  husband  and  wife  are  not, 
prope]"ly  speaking,  next  of  kin  to  one  another,  the  title  the 
husband  thus  acquires  may  be  designated  as  a  title  jure  mariti 
under  the  statutes  of  distribution.* 

The  statutes  of  distribution  in  this  country  seem  to  have 
very  generally  adopted  the  English  principle,  and  to  have 
given  the  husband  the  sole  title  to  the  wife's  outstanding 
personal  property  upon  her  death,  to  the  exclusion  of  her 
kindred,  even  to  the  exclusion  of  her  own  children.^    Hence 


1  Cas.  temp.  Talb.  173  ;  3  P.  Wms.  409 ;  Macq.  Hus.  &  "Wife,  188.  And  see 
Hetrick  v.  Iletrick,  13  Iiid.  44*;  Donnington  ;;.  Mitcliell,  1  Green  Ch.  243.  The 
statute  rule  now  introduced  into  many  States,  is  that  the  luisband  is  liable  as 
administrator  on  the  estate  of  his  wife  for  her  debts,  only  to  the  extent  of  the 
assets  received  by  him.     See  N.  Y.  Rev.  Stat.  vol.  2,  p.  75. 

•i  See  Hill  I'.  Goodrich,  46  N.  H.  41  ;  Bain  v.  Doran,  54  Penn.  St.  124. 

3  Clough  V.  Bond,  6  Jur.  50.  See  Mitchell  v.  Holmes,  L.  R.  8  E.x.  119,  as  to 
a  sum  made  payable  to  the  "  administrator  "  of  J.,  a  married  woman. 

*  2  Bl.  Com.  515;  Watt  v.  Watt,  3  Ves.  24G,  247;  2  Kent  Com.  136,  and 
authorities  cited. 

5  Hansom  v.  Nichols,  22  N.  Y.  110  ;  McCosker  v.  Golden,  1  Bradf.  Sur.  64 ;  2 
Kent  Com.  136;  Donnington  v.  Mitchell,  1  Green  Ch.  243;  Jones  v.  Brown,  34 
N.  H.  439;  Hawley  v.  Burgess,  22  Conn.  284;  Stockett  r.  Bird,  18  Md.  484; 
Rice  V.  Thompson,  14  B.  Monr.  377  ;  Williams  v.  Carle,  2  Stockt.  643  ;  Walker 

[165] 


*  160  HUSBAND  AND  WIFE. 

*  161    if  the  husband,  after  *  his  wife's  death,  obtain  pos- 

session of  her  personal  property,  without  taking  out 
letters  of  administration,  he  may  retain  it  against  her  next  of 
kin.i  And  if  the  wife's  next  of  kin  administer,  he  will  be  a 
trustee  for  the  husband  or  his  representatives,  in  accordance 
with  the  Enghsh  rule.^ 

But  the  principle  that  the  husband  administers  exclusively 
for  his  own  benefit  on  his  wife's  estate  is  not  recognized  in 
Vermont,  but  on  the  contrary  has  been  pronounced  incom- 
patible with  the  legislation  of  that  State.^  And  the  rule,  as 
there  declared,  is  that  choses  in  action  of  the  wife,  not  reduced 
to  possession  by  her  husband,  during  her  life,  nor  as  her  ad- 
ministrator, by  reason  of  his  removal  by  the  court,  go  to  her 
heirs,  according  to  the  statute  of  descents  and  distribution. 
So  in  some  other  States  the  husband  is  entitled  by  law  to  a 
portion  only  of  the  balance  in  his  hands  as  administrator,  or 
is  postponed  to  her  next  of  kin  altogether ;  is  not  allowed  to 
succeed  to  her  estate  by  virtue  of  his  marital  right  without 
taking  out  letters  of  administration  ;  nor  to  administer  with- 
out accounting  for  his  balances  to  the  persons  designated  by 
statute  as  entitled  to  distributive  shares.^ 

Where  the  husband  himself  dies  before  the  wife's  outstand- 
ing personal  chattels  are  recovered,  his  next  of  kin  will  be 
entitled  to  them  in  equity.  This  is  the  rule  in  England ; 
also  in  America,  wherever  the  husband's  right  to  administer 
for  his  own  benefit  is  recognized ;  for  it  is  the  necessary  con- 
sequence of  that  doctrine.  But  in  England  a  somewhat  cir- 
cuitous course  was  usually  taken  in  such  cases.  The  wife's 
next  of  Idn  were  held  entitled  to  letters  of  administra- 

*  162    tion  de  bonis  non  of  her  *  estate  not  received  by  her 

husband  during  liis  life.     But  they  were  accountable 

V.  Walker,  25  Mis.  367;  Clay  v.  Irvine,  4  W.  &  S.  232;  Barnes  v.  Underwood, 
47  N.  Y.  351 ;  Pickens  v.  Hill,  30  Ind.  26'J. 

1  Hendren  v.  Colgin,  4  Munt.  231. 

^  Betts  V.  Kinipton,  2  B.  &  Ad.  273 ;  Hunter  v.  Hallett,  1  Edw.  Ch.  388 ; 
Whitaker  v.  Wliitaker  6  Jolins.  112.  See  also  statutes  of  the  several  States, 
which  generally  regulate  the  subject  of  administration  and  distribution. 

3  Holmes  r.  Holmes,  28  Vt.  765. 

*  Cox  V.  Morrow,  14  Ark.  603  ;  Welch  v.  Welch,  14  Ala.  76  ;  Nelson  v.  Goree, 
34  Ala.  565  ;  Baldwin  v.  Carter,  17  Conn.  201 ;  Curry  v.  Fulkinson,  14  Ohio,  100. 

[166] 


\ 


EFFECT  OF  WIFE'S  DECEASE.  *  162 

as  trustees  for  the  legatees  or  next  of  kin  of  the  husband.^  In 
this  country,  if  the  husband  dies,  leaving  assets  of  his  wife 
unadministered,  the  right  of  administration  follows  the  right 
of  estate,  and  devolves  upon  the  husband's  next  of  kin.^  And 
this  seems  to  have  been  finally  adopted  as  the  English  prac- 
tice in  such  cases.'^  Whenever  administration  de  bonis  non  of 
the  wife  is  granted  to  a  third  person,  in  either  England  or 
America  (subject  to  such  exceptions  as  were  noted  in  the 
preceding  paragraph),  this  administrator  is  a  trustee  for  the 
representatives  of  the  husband  in  case  he  dies  after  his  wife.* 

In  a  late  English  case  a  female  took  administration  of  the 
estate  of  a  deceased  person  as  creditor,  got  in  a  large  part  of 
the  estate,  and  paid  some  of  the  debts  ;  she  afterwards  mar- 
ried and  died.  The  husband  had  taken  possession  of  lease- 
holds, part  of  the  estate,  but  no  fund  had  been  set  apart  for 
the  payment  of  the  wife's  debt.  It  was  held  that  administra- 
tion of  the  unadministered  effects  of  the  deceased  could  not 
be  taken  by  the  husband  in  his  own  right  as  a  creditor,  but 
only  as  representative  of  his  wife.^ 

In  another  case  the  defendant  received  money  for  a  married 
woman,  and  wrote  to  her  that  he  held  it  at  her  disposal. 
The  wife  died,  and  then  the  husband,  who  had  not  interfered 
in  the  matter ;  and  the  wife's  administratrix  sued  the 
defendant  *  for  money  had  and  received  to  the  use  of  *  163 
the  wife.  It  was  held  that  he  could  maintain  the 
action.^ 

An  action  for  a  legacy  due  to  a  wife,  or  for  other  choses  not 

1  Bell  Hus.  &  Wife,  62;  Macq.  Hus.  &  Wife,  53,  n. ;  Humphrey,  j;.  Builen, 
1  Atk.  4od;  Squib  v.  Wyn,  1  P.  Wms.  378;  Cart  v.  Rees,  ib.  3«1  ;  Elliot  v.  Col- 
lier, 3  Ark.  52ti. 

^  lioosevelt  v.  EUithorp,  10  Paige,  415;  Stewart  v.  Stewart,  7  Johns.  Cli.  229; 
Bryan  v.  Kooks,  25  Geo.  G22;  Ward  v.  Thorupsou,  6  Gill  &  J.  34'J  ;  Patterson  i-. 
High,  8  Ired.  Eq.  52. 

•^  Fielder  v.  lianyer,  3  Hag.  Eccl.  770  ;  2  Kedf.  Wills,  70;  1  Wnis.  Ex'rs,  300. 
^*  English  cases  cited  above  ;  Whitaker  y.  Whitaker,  G  Johns.  112  ;  Hendren  t;. 
Colgin,  -1  Munf.  231 ;  Clark  t- .  Clark,  G  W.  &  S.  85 ;  2  Kent  Com.  13G,  and  cases 
cited ;  Bells  v.  Ivinipion,  2  B.  &  Ad.  273  ;  Bryan  v.  Kooks,  25  Geo.  G22.  By 
stalute  in  New  York  tlie  husband's  executors  and  administrators  take  the  prop- 
erty, and  no  administrator  dt  bonis  non  need  be  appointed  on  the  witie's  estate. 
Lockwood  V.  Stockliolm,  11  Paige,  87. 

s  Goods  of  liisdon,  L.  K.  1  P.  &  D.  637. 

«  Fleet  V.  Perrins,  L.  R.  4  Q.  B.  500 ;  s.  c.  L.  R.  3  Q.  B.  536. 

[  167  J 


*  163  HUSBAND   AND   WIFE. 

reduced  into  possession  during  coverture,  is  proj^erly  brought 
in  the  name  of  her  administrator  after  her  death.^  And  the 
rule  would  appear  to  be  the  same,  though  the  consideration  of 
the  chose  was  the  wife's  real  estate.^  So  it  is  held  that  where 
a  legacy  was  given  to  a  trustee  for  the  use  of  a  married 
woman,  who  died  without  having  received  it,  and  the  hus- 
band afterwards  died  without  having  recovered  it,  the  personal 
representative  of  the  husband  is  entitled  to  a  decree  in  equity, 
as  against  the  personal  representative  of  the  wife,  for  such 
portion  thereof  as  may  have  come  to  the  hands  of  the  latter, 
and  against  the  trustee  for  the  balance  retained  by  him.^ 

But  the  husband  as  tenant  by  the  curtesy  may  have,  upon 
certain  conditions,  an  enlarged  life-interest  in  his  wife's  lands, 
extending  beyond  her  life  if  he  survives.  Tenancy  by  the 
curtesy,  or  tenancy  by  curtesy,  is  a  freehold  estate  in  the  hus- 
band for  the  term  of  his  natural  life.  He  acquires  it  by  the 
fact  that  a  child  capable  of  inheritance  is  born  of  the  mar- 
riage. The  meaning  of  the  term  is  somewhat  obscure.  Some 
have  thought  the  word  "  curtesy "  signifies  the  favor  or 
courtesy  with  which  the  law  regards  the  husband.  Others 
that  it  comes  from  the  Latin  word  curtis,  and  has  I'eference  to 
the  feudal  custom  which  permitted  the  husband,  as  soon  as  a 
son  was  born,  to  attend  court  as  one  of  the  pares  cnrice,  and 
do  homage  without  his  wife.  But  there  is  reason  to  believe 
that  tenancy  by  the  curtesy  existed  in  the  civil  law  during 
the  reign  of  Constantine.*  This  privilege  of  the  husband  ex- 
tends to  all  lands  and  tenements  of  which  the  wife  was 
*  164  seised  at  any  time  *  during  coverture,  whether  legal  or 
trust  estate,  whether  in  fee-simple,  or  by  way  of  re- 
mainder or  reversion.^  The  common  law  affords  herein  a 
rare  but  positive  instance  of  public  policy  discriminating  in 
favor  of  the  propagation  of  children. 

I  Willis  V.  Roberts,  48  Me.  257  ;  Allen  v.  Wilklns,  3  Allen,  321. 
'•i  Driggs  V.  Abbott,  27  Vt.  580. 

^  Coleman  v.  Hallowell,  1  Jones  Eq.  204.     But  see  Fleet  v.  Perrins,  supra. 
*  1  Washb.  Real  Prop.  128,  and  authorities  cited  ;  2  Bl.  Com.  126,  and  notes 
by  Chittj-  and  others;  Wright  Ten.  193,  194;  2  Bright  Hus.  &  Wife,  116. 
5  lb.  ;  Co.  Litt.  30  a ;  ib.  29  a,  n.  165 ;  Watts  i'.  Bail,  1  P.  Wms.  109. 

[1G8] 


EFFECT   OF   WIFE'S   DECEASE.  ♦  164 

Four  things  are  essential,  at  common  law,  to  entitle  a  hus- 
band to  curtesy.  First.  A  lawful  marriage.  Second.  Seisin 
of  the  wife  at  some  time  during  coverture.  TJiird.  Birth  alive 
of  issue  capable  of  inheritance.  Fourth.  Death  of  the  wife. 
After  the  birth  of  the  child  the  husband's  title  to  curtesy 
becomes  possible  ;  and  the  curtesy  is  then  initiate.  After  the 
death  of  the  wife  the  title  to  curtesy  becomes  complete  ;  and 
the  curtesy  is  then  consummate.^ 

Of  late  years  tenancy  by  the  curtesy  has  become  practically 
infrequent  in  England  by  reason  of  the  prevalence  of  mar- 
riage settlements  excluding  such  right.^  In  this  country  it 
has  existed  in  all  of  the  older  States,  but  is  modified  in  many 
of  them,  expressly  or  by  implication,  by  late  statutes.  In 
Iowa  and  Indiana,  curtesy  is  expressly  abolished,  and  a  cer- 
tain defined  interest  in  the  wife's  real  estate  of  the  dower  sort 
goes  to  her  husband  instead,  by  way  of  inheritance.  In 
Texas,  California,  Louisiana,  and  other  States  where  the  ten- 
ure of  real  estate  comes  from  the  community  or  civil  law, 
rather  than  the  common  law,  curtesy  is  not  recognized.  In 
some  of  the  States  the  right  of  curtesy  appears  to  be  denied 
to  husbands  wlio  wilfully  neglect  and  desert  their  wives.  In 
certain  New  England  States,  as  Massachusetts  and  Rhode 

1  For  a  full  description  of  curtesy  with  its  incidents,  see  1  Waslib.  Real  Prop. 
127  ;  Wnis.  Real  Prop.  8th  ed.  218  ;  4  Kent  Com.  27-35. 

Questions  concerning  tiie  husband's  curtesy  are  most  commonly  raised  with 
reference  to  the  second  essential  above  stated.  Kent  says  (4  Kent  Com.  29,  80) 
that  the  wife,  according  to  the  English  law,  must  have  been  seised  in  fact  and 
in  deed,  and  not  merely  of  a  seisin  in  law  of  an  estate  of  inheritance.  But  he 
admits  that  tliis  rule  was  relaxed  in  equity  by  a  free  and  liberal  con.struction  ;  and 
he  further  intimates  that  in  Connecticut,  if  not  in  some  other  parts  of  this 
country,  there  was  a  disposition  to  carry  the  principle  still  further.  Seisin  in 
law,  without  actual  entry,  is  in  many  States  at  the  present  day  deemed  sutRcient 
to  give  curtesy.  Wass  v.  Bucknam,  38  Me.  356;  Watkins  v.  Thornton,  11 
Ohio  St.  367  ;  Rabb  ;'.  Griffin,  26  Miss.  579  ;  Stephens  v.  Hume,  25  Mis.  349. 
Of  the  husband's  curtesy  in  his  wife's  separate  property  we  shall  speak  here- 
after. 

We  may  add  that  the  husband  cannot  be  tenant  by  the  curtesy  of  the  wife's 
estate  in  reversion  or  remainder,  while  there  is  an  outstanding  life-estate  not 
terminated ;  her  interest  must  fall  into  possession  before  he  acquires  an  inchoate 
right  of  wliich  either  he  or  his  creditors  can  take  advantage.  Ferguson  v. 
Tweedy,  43  N.  Y.  543  ;  Gibbins  v.  Eyden,  L.  R.  7  Eq.  371  ;  Shores  v.  Carley, 
8  Allen,  425  ;  Moore  v.  Calvert,  6  Bush,  356. 

^  Wms.  Real  Prop.  187 ;  1  Washb.  Real  Prop.  129. 

[169] 


*  164  HUSBAND  AND  WIFE. 

Island,  tenancy  by  the  curtesy  is  expressly  reserved  by  stat- 
ute.^ As  to  its  present  existence  in  New  York  there  is  some 
uncertainty.^ 

*165  *  For  an  injury  to  the  wife's  inheritance  in  lands  the 
husband  cannot  sue  alone,  since  the  cause  of  action 
will  not  survive  to  him.^  Consequently  he  cannot  prosecute 
such  an  action  after  the  death  of  the  wife  during  the  pend- 
ency of  such  a  suit  and  before  judgment.*  If  the  husband 
should  die  first,  however,  the  suit  will  not  abate,  as  he  is  not 
the  real  plaintiff.^ 

Inasmuch  as  the  husband's  interest  in  his  wife's  lands  is 
limited  to  the  usufruct  as  a  life-tenant,  it  follows  that  all 
claims  presented  by  him  against  her  estate,  after  her  death,  in 
relation  to  such  property,  will  be  closely  scrutinized.  Thus 
it  has  been  held  that  he  cannot  claim  reimbursement  for 
moneys  paid  in  settling  controversies  in  regard  to  the  title  of 
his  wife's  real  estate.^  So  where  a  husband  was  sued  with 
his  wife  for  her  debt  contracted  before  marriage  and  secured 
by  a  mortgage  of  her  land,  and  after  her  death  voluntarily 
suifered  judgment  to  be  rendered  against  him  for  the  amount 
of  the  debt,  when  he  knew  that  he  was  not  legally  liable  to 
a  judgment,  and  paid  the  debt  on  execution,  taking  to  him- 
self no  assignment  of  the  mortgage,  but  suffering  it  to  be 

'  See  statutes  of  different  States  cited  in  1  Washb.  Real  Prop.  258,  and  note ; 
and  notes  to  4  Kent  Cora.  34.  Statute  provisions  as  to  curtesy  and  dower  are 
frequently  alike.  And  see  Ross  v.  Adams,  4  Dutch.  160 ;  Noble  v.  Noble,  19 
Ind.  431.  As  to  the  effect  of  the  wife's  deed  of  trust  of  her  land  in  Iowa,  where 
the  husband  did  not  release  his  "  dower  interest,"  and  a  sale  was  subsequently 
made  under  the  trust,  see  Huston  v.  Seeley,  27  Iowa,  183. 

■'  Hui  d  V.  Cass,  9  Barb.  866  ;  Clark  v.  Clark,  24  Barb.  581 ;  contra,  Billings  v. 
Baker,  28  Barb.  343. 

■^  Clapp  V.  Stoughton,  10  Pick.  463;  Fuller  v.  Naugatuck  R.  R.  Co.,  21  Conn. 
557 ;  Com.  Dig.  Baron  &  Feme,  V. 

*  1  Bl.  Com.  443  ;  1  Chitty  PI.  75;  Ryder  v.  Robinson,  2  Greenl.  127  ;  Buck 
V.  Goodrich,  33  Conn.  37.     And  see  Deadrich  v.  Armour,  10  Humph.  588. 

*  1  Chitty  PI.  22  ;  Little  v.  Downing,  37  N.  H.  355 ;  Jaques  v.  Short,  20 
Barb.  269.  As  to  tlie  right  of  a  judgment  creditor,  after  the  wife's  death,  to 
reach  tiie  imsband's  interest,  on  an  issue  of  fraud,  see  Curtis  v.  Fox,  47  N.  Y. 
299. 

«  Campbell  v.  Wallace,  12  N.  H.  362 ;  Burleigh  t-.  Coffin,  2  Fost.  118. 

[170] 


EFFECT   OF  WIFE'S  DECEASE.  *  165 

discharged  altogether,  it  is  held  that  he  cannot  seek  indem- 
nity from  his  wife's  heirs  either  at  law  or  in  equitj^,  even 
though  he  had  misapprehended  the  legal  effect  of  his  consent 
to  the  judgment.^ 

So  the  general  rule  is  strict  as  regards  improvements  made 
by  the  husband  upon  his  wife's  real  estate.  The  English 
doctrine  is  that  if  the  husband  erects  buildings  upon  his 
wife's  lands,  or  otherwise  makes  permanent  improvements 
thereon,  expending  his  own  money  for  such  purpose, 
the  presumption  is  *that  he  intended  the  expense  for  *  1G6 
his  wife's  benefit,  and  he  cannot  recover  for  it.^  Sev- 
eral cases  of  this  sort  have  come  before  our  own  courts  quite 
recently,  the  claims  being  usually  presented  after  tlie  wife's 
death ;  and  this  principle  has  been  rigidly  applied,  though 
doubtless  occasioning  in  some  instances  positive  hardship  and 
wrong.^  And  since  the  husband  has  no  interest  in  improve- 
ments upon  his  wife's  real  estate,  neither,  of  course,  have  his 
creditors.^  Agreements  between  husband  and  wife  mio-ht 
vary  the  principle.  If  a  husband  improves  his  wife's  land 
without  any  agreement  for  compensation,  he  cannot  bring  in 
a  claim  after  her  death  to  be  enforced,  either  against  her 
estate  or  her  heirs.^  But  where  a  husband,  borrowing  money 
on  the  security  of  his  wife's  lands,  lays  the  money  out  in  im- 
provements thereon  with  her  manifest  approval,  equity  will 
relieve  him  from  liability  for  repayment  of  the  principal,  while 
as  a  tenant  by  the  curtesy  he  would  be  bound  to  keep  down 
the  interest.^ 

The  husband,  too,  is  bound  to  bury  his  deceased  wife  in  a 

1  Warren  v.  Jennison,  6  Gray,  559.  But  see  2  Story  Eq.  Juris.  §  1023 ;  Pitt 
V.  Pitt,  1  Turn.  &  Russ.  180;  Shrewsbury  v.  Shrewsbury,  1  Ves.  Jr.  233;  Jen- 
ness  V.  Robinson,  10  N.  H.  218. 

2  1  Roper  Hus.  &  Wife,  54;  Campion  v.  Colton,  17  Ves.  264  ;  1  Washb.  Real 
Prop.  281. 

»  Burleigli  v.  Coffin,  2  Fost.  118 ;  Wliite  v.  Hildreth,  32  Vt.  2G5.  And  see 
Washburn  v.  Sproat,  16  Mass.  449. 

*  Lichty  V.  liager,  13  Penn.  St.  565;  Robinson  v.  Huffman,  15  B.  Monr.  80  ; 
Corning  r.  Fowler,  24  Iowa,  584;  Knott  v.  Carpenter,  3  Head,  542;  Barto's 
Appeal,  55  Penn.  St.  386. 

5  Webster  v.  Hildretli,  33  Vt.  457. 

«  Hauford  v.  Bockee,  5  C.  E.  Green,  101 ;  Kirby  v.  Bruns,  45  Mis.  234. 

[171] 


*  166  HUSBAND   AXD   WIFE. 

suitable  manner  ;  that  is  to  sa)^,  he  is  bound  to  defray  all 
necessary  funeral  expenses.^  Even  when  a  wife  dies  who 
had  been  living  separate  from  her  husband,  it  is  held  that  her 
surviving  husband  must  provide  her  with  a  funeral  at  a  rea- 
sonable expense ;  and,  if  he  neglects  to  do  so,  any  person  who 
voluntarily  employs  an  undertaker  for  that  purpose  and  pays 
him  for  his  services,  is  entitled  to  recover  the  sum  thus  ex- 
pended from  the  husband  in  an  action  at  law.^  So,  too,  where 
the  wife  died  during  the  absence  of  her  husband  abroad,  so 
that  it  was  necessary  for  another  to  superintend  the  funeral.^ 
And  it  is  held  that  even  an  infant  husband  may  contract  for 
the  interment  of  his  deceased  wife,  or  lawful  children,  so  as 
to  be  bound  by  his  contract.  The  contract  will  have  validity, 
because  it  is  a  contract  for  the  burial  of  those  who  are 

*  167    personce  *  eonjunctce  with  him  by  reason  of  the  mar- 

riage, and  as  such  it  is  to  be  regarded  as  a  contract  for 
his  own  personal  benefit.^ 

These  points  were  decided  in  England  ;  and  the  subject 
seems  to  have  received  little  attention  in  the  courts  of  this 
country.  But  it  is  believed  that  a  similar  rule  prevails  in 
most,  if  not  all  of  the  States,  except  so  far  as  modijBed  by  the 
divorce  laws.  And  in  recognition  of  the  husband's  para- 
mount right  in  matters  relative  to  his  wife's  burial,  it  is  held 
in  Massachusetts,  that  a  husband  who  has  interred  his  wife 
in  a  pubhc  burial-ground  is  not  liable  as  a  trespasser  for 
removing  a  grave-stone,  smce  placed  at  her  grave  by  her 
mother,  without  injuring  the  stone,  and  for  the  purpose  of 
substituting  another.^  Certainly  where  separation  took  place 
under  circumstances  which  should  render  the  husband  liable 
for  his  wife's  subsequent  support,  he  is  liable  for  her  neces- 
sary funeral  and  burial  expenses  also.^ 

1  Macq.  Hus.  &  Wife,  191. 

2  Ambrose  v.  Keuison,  4  I"].  L.  &  Eq.  361 ;  Bradshaw  i-.  Beard,  12  C.  B.  n.  s. 
344. 

3  Jenkins  v.  Tucker,  1  H.  Bl.  90. 

<  Chappie  V.  Cooper,  13  M.  &  W.  252. 

5  Durell  V.  Hay  ward,  9  Gray,  248. 

6  Cunningliam  v.  Reardon,  98  Mass.  538.  In  Corley  v.  Green,  12  Ailen,  104, 
a  liusband  is  allowed  to  reclaim  a  note,  as  against  her  administrator,  where  it 
appears  that  he  did  not  mean  to  part  with  the  title,  but  only  gave  it  to  her  for 
collection  that  she  might  use  the  proceeds  for  her  support. 

[172] 


i 


EFFECT  OF  WIFE'S  DECEASE.  *  167 

The  husband's  liability  for  his  wife's  debts  dum  sola,  ceases 
at  her  death.  His  liability  for  her  necessaries,  and  upon 
contracts  in  sreneral  which  she  had  made  as  his  aeent  durino- 
her  life,  does  not  so  terminate ;  for  they  are  his  contracts  and 
not  hers.  And  it  is  held  that  where  the  husband,  during 
coverture,  pays  the  debt  of  his  Mife,  contracted  chon  sola, 
in  a  specific  article,  and  the  title  to  that  article  fails,  he 
remains  liable  for  its  value,  notwithstanding  his  wife  died  in 
the  mean  time,  and  the  title  failed  by  reason  of  her  unex- 
pected death.i  But,  on  the  other  hand,  the  husband  of  one 
who  inherited  personal  property  from  a  grantor  who  had  con- 
veyed land  witli  covenants  of  warranty  cannot  be  held  liable 
after  her  death  for  a  breach  of  the  covenant.^ 

1  Crawford  v.  Verry,  12  Ind.  427.    And  see  Martin  v.  Foster,  38  Ala.  688. 

2  Howes  V.  Bigelow,  13  Mass.  384.     See  remarks  of  Parker,  C  J.,  in  ib. 


[173] 


*  168  HUSBAND   AND   WIFE. 


*168  *  CHAPTER  VIII. 

COMMOxN-LAW   RIGHTS    AND    DISABILITIES   OF  THE    WIFE    ON    HER 
husband's    DECEASE. 

On  the  dissolution  of  a  marriage  by  the  death  of  the  hus- 
band, the  widow  is  usually  selected  to  administer  upon  his 
estate,  provided  she  be  willing  and  competent  to  take  the 
trust.  But  her  right  of  administration  on  her  husband's 
estate  is  not  coextensive  with  that  of  the  husband  on  her 
estate.  For  in  the  one  instance  the  husband  is  to  be  pre- 
ferred to  all  others ;  whereas  in  the  other,  administration  may 
be  granted  by  the  court  at  discretion,  either  to  the  widow 
alone,  or  to  the  next  of  kin,  or  to  both  together.^  This  is  the 
law  in  England,  and  the  same  prevails  generally  in  this 
country,  under  the  statutes  of  the  diiferent  States.^  The 
difference  which  the  law  makes  as  to  their  resj)ective  rights 
may  help  explain  wdiy  the  right  of  the  wife  to  administer 
should  be  less  than  that  of  the  husband. 

Under  the  English  statute  of  distributions,  22  &  23  Car.  II. 
c.  10,  the  widow  surviving  her  husband,  who  deceased  intes- 
tate, is  entitled  to  one-third  of  the  personal  property  wdiich 
remains  after  payment  of  the  husband's  debts,  while  the  re- 
maining tw^o-thirds  go  to  the  children  or  their  representa- 
tives.'^    The  widow's  share  is  not  unfrequently  termed  her 

1  Fawtrv  v.  Fawtry,  1  Salk.  36 ;  11  Vln.  Abr.  92  ;  Anon.,  Stra.  552;  Lovelas, 
3  ;  Macq.  Hus.  &  Wife,  145 ;  Case  of  Williams,  3  Hag.  Ecc.  217.  See  Goods  of 
Ihler,  L.  R.  3  P.  &  D.  50,  as  to  right  of  a  widow  having  lived  separate  from  her 
Imsband  to  administer. 

-  2  Kent  Com.  410,  411,  and  notes.  But  by  the  New  York  statutes  (vol.  2, 
p.  74,  Rev.  Stats.),  the  widow  and  next  of  kin  are  designated.  Grant  of  admin- 
istration revoked,  where  it  appeared  that  the  marriage  under  which  E.  claimed 
to  be  widow  was  void.     O'Gara  v.  Eisenlohr,  38  N.  Y.  296. 

3  2  Bl.  Com.  515,  516. 

[174] 


EIGHTS   AND   DISABILITIES   OF   WIFE.  *  168 

"  thirds,"  or  incorrectly  her  "  thirds  of  personal  estate  at 
common  law."  ^  The  statute  further  provides  that  when  the 
husband  dies  intestate,  leaving  a  widow  only  and  no 
lineal  descendant,  the  widow  *  is  entitled  to  a  moiety,  or  *  169 
half  of  his  personal  estate,  and  the  other  half  goes  to 
the  husband's  next  of  kin.  When  there  are  no  next  of  kin, 
the  widow  is  not  entitled  to  the  whole  of  her  husband's  per- 
sonal estate  ;  but  one-half  belongs  to  her,  and  the  other  half 
goes  to  the  crown.^  Here,  too,  the  wife's  right  is  not  coequal 
with  that  of  her  husband  ;  for  he  surviving  her  takes  the 
whole  of  her  personal  estate,  while  she  surviving  him  cannot 
in  any  event  be  entitled  to  more  than  one-half  of  his  personal 
estate,  even  though  the  estate  consisted  wholly  of  property 
which  belonged  to  her  before  marriage.  It  is  held,  that  the 
widow  of  a  deceased  child  cannot  take  as  a  representative  of 
such  child  under  the  statutes  of  distributions.^  The  husl)and 
and  wife,  by  a  marriage  settlement,  may  exclude  one  another 
from  all  benefits  by  way  of  distribution  in  their  respective 
estates,  other  provisions  having  been  substituted  by  way  of 
recompense.^ 

In  this  country  the  statute  of  Charles  II.  is  at  the  basis  of 
our  legislation  regarding  the  estates  of  intestates,  though 
modifications  are  frequently  to  be  met  with.  Thus  in  Ver- 
mont, if  there  be  no  issue,  the  widow  takes  the  whole  estate, 
if  not  exceeding  two  thousand  dollars,  and  one-half  of  the 
residue  above  that  sum.  In  Massachusetts,  if  there  be  no 
issue,  the  widow  takes  the  residue  to  the  amount  of  five 
thousand  dollars,  and  one-half  of  the  excess  above  ten  thou- 
sand dollars.  In  New  York,  there  are  statute  provisions  on 
the  general  sul)ject  of  distribution  quite  full  and  minute. 
If  no  descendant  or  parent  survive  the  husband,  the  widow 

1  See  Lord  Cottenham,  in  Gurley  v.  Gurley,  8  CI.  &  Fin.  741  ;  ^Lacq.  IIus.  & 
Wife,  146. 

2  2  Bl.  Com.  515,  516;  2  Kent  Cora.  427  ;  Cave  v.  Roberts,  8  Sim.  214.  In 
certain  localities  of  England  a  different  rule  prevails  as  to  distribution  of  the 
estates  of  intestates,  the  statute  of  distribution  permitting  the  local  customs  to 
continue  in  force  ;  as  in  the  city  of  London  and  Provinces  of  York.  2  Bl.  Cora. 
518. 

3  Price  V.  Strange,  6  Madd.  161. 

*  Earl  of  Buckiughamshire  v.  Drury,  2  Eden,  60. 

[175] 


*  169  HUSBAND   AND  WIFE. 

takes  two  thousand  dollars  and  one-half  of  the  surplus.     But 
if  there  be  no  next  of  kin  to  the  intestate,  as  near  as 

*  170    nephew  or  niece,  she  takes  the  whole  surplus.     *  In 

Maryland,  the  widow  takes,  as  under  the  common  law 
at  the  time  of  its  colonization,  her  "  reasonable  share,"  which 
is  one-third  or  one-half,  according  to  circumstances.  In 
Pennsylvania,  the  laAv  gives  the  same  rights,  so  far  as  regards 
the  widow  and  general  kindred,  as  prevails  in  England  under 
the  statute  of  distributions.  In  Ohio,  the  widow  takes  the 
entire  personal  estate  after  the  delfts  are  paid,  if  there  be  no 
children;  and  if  there  are  any,  she  takes  one-half  if  the  estate 
amounts  only  to  four  hundred  dollars ;  and  if  it  exceeds  that 
sum  she  takes  one-third  of  the  surplus.  In  Indiana,  some- 
thing like  the  community  system  in  this  respect  has  been 
lately  adopted.  In  Georgia,  the  widow's  share  in  her  intes- 
tate husband's  personal  estate  is  affected  by  her  election  to 
take  dower.  Where  there  is  no  widow  or  kindred,  the  State 
generally  claims  the  balance  under  the  statutory  provisions, 
as  in  England  ;  but  if  there  be  a  widow,  it  is  common  in  this 
country  to  give  her  the  whole  surplus  in  default  of  the 
husband's  kindred  ;  while  it  is  moreover  apparent,  from 
the  foregoing  statute  provisions,  that  American  legislation 
strongly  favors  the  widow  a^  against  distant  kindred  of  the 
intestate.^ 

It  is  held  that  a  bequest  to  the  wife  by  the  husband,  in  full 
of  her  legal  claims,  is  no  bar  to  her  right  to  a  distributive 
share  in  a  lapsed  bequest.^  So  acts  of  the  husband  during 
his  lifetime,  committed  for  the  purpose  of  defrauding  the  wife 
of  her  distributive  share  in  his  personal  estate  after  his  decease, 
have  been  set  aside  in  equit3^  Thus  in  Maryland,  in  a  case 
where  it  appeared  that  the  husband  with  such  design  had 
turned  his  personal  into  real  estate,  and  had  then  executed 
conveyances  of  the  real  estate  to  other  parties,  while  retaining 
the  title-deeds  in  his  own  hands  and  keeping  in  possession  of 

1  See  2  Kent  Com.  11th  ed.  427,  428,  and  notes.  And  see  Dobson  v.  Dobson, 
80  Iowa,  410 ;  Sullivan  v.  McGowen,  33  Ind.  189. 

2  Garthshore  v.  Chalie,  10  Ves.  Jr.  1.  But  see  Wright  v.  Fearis,  3  Swanst. 
181. 

[176] 


RIGHTS   AND   DISABILITIES   OF  WIFE.  *  170 

the  premises,  the  conveyances  were  set  aside  after  his  deatli 
as  a  fraud  upon  his  wife's  lawful  rights.^ 

The  wife's  privilege  is  carried  even  farther  in  Massa- 
chusetts, *'  by  a  statute  which  permits  the  widow  to  *  171 
waive  a  provision  made  for  her  by  her  husband's  will, 
and  thereupon  to  take  such  portion  as  the  law  would  have 
given  her  had  he  died  intestate.  But  this  privilege  is  accorded 
with  some  restrictions  as  to  the  full  amount  to  he  allowed 
her.2  And  it  is  to  be  inferred  that  the  right  of  election  is 
personal  to  herself,  and  cannot  be  exercised  by  her  represent- 
atives after  her  death. 

Another  liberal  provision  made  by  the  legislatures  of  some 
American  States  is  that  known  as  the  widoAv's  allowance. 
This  is  a  reasonable  sum,  such  as  the  Court  of  Probate  may 
order,  as  necessaries  to  the  widow  for  herself  and  the  famil}^, 
or,  if  there  be  no  widow,  to  the  minor  children.  The  allow- 
ance is  set  apart  as  something  superior  to  the  claims  of 
general  creditors,  and  is  even  preferred  to  the  expenses  of 
administration,  funeral  and  last  illness  of  the  husband.  The 
amount  is  at  the  discretion  of  the  court,  and  where  the  hus- 
band has  died  insolvent,  leaving  few  assets,  it  is  not  uncom- 
mon for  the  whole  of  the  personal  property  to  be  thus  awarded 
to  the  widow,  whereby  is  afforded  an  expeditious  means  of 
settling  perplexing  little  estates.  This  right  is  treated  in 
Massachusetts  as  personal  to  the  widow,  provided  she  survive 
her  husband ;  it  does  not  pass  to  her  representatives.'^  Nor 
is  it  considered  in  the  same  light  as  a  distributive  share ;  but 
the  amount,  if  allowed,  is  generally  to  be  regulated  accord- 
ing to  the  necessitous  circumstances  of  the  widow  and  her 
family.* 

1  Hays  V.  Henry,  1  Md.  Ch.  387. 

-  Mass.  Stats.  1861,  c.  104;  Firth  v.  Denny,  2  Allen,  4(58;  Towle  r.  Swasey, 
lOG  Mass.  100.  Similar  statutes  are  in  force  in  other  States.  VVliite  i'.  Dance, 
63  I  I.  413  ;  Stockton  v.  Wooley,  20  Ohio  St.  184. 

^  Otherwise  in  Indiana.     Bratney  v.  Curry,  33  Ind.  399. 

*  Mass.  Gen.  Sts.  c.  96,  §§  4,  5.  See  Hollenbeck  v.  Tixley,  3  Gray,  621 ; 
Brazer  v.  Dean,  15  Mass.  183 ;  Adams  v.  Adams,  10  Met.  170  ;  Smith's  Prob. 
Pract.  (Mass.)  106-109  ;  Sherman  v.  Sherman,  21  Ohio  St.  631.  In  Illinois,  even 
a  rich  widow  may  claim  the  allowance.  Strawn  v.  Strawn,  53  111.  203.  See 
Brooks  V.  Martin,  43  Ala.  360,  as  to  allowance  of  a  "  work  horse." 

12  [  177  ] 


*  171  HUSBAND   AND  WIFE. 

The  widow's  paraphernalia  is  a  species  of  property  recog- 
nized at  the  common  law,  though  borrowed  from  the  civilians. 
It  consists  of  such  articles  of  wearing  apparel,  personal  orna- 
ment, and  personal  convenience  as  are  suitable  to  a  wife's 
rank  and  degree,  and  such  as  she  continued  to  use  during  the 
marriage.^  The  term  paraphey-naUa  is  derived  from  the 
Greeks,  and  transmitted  to  England  through  the  civil 

*  172    law.     But  while  the  wife's  *  paraphernalia  at  the  civil 

law  resembled  what  we  call  the  wife's  separate  prop- 
erty, the  word  itself  has  a  more  limited  signification  in  Eng- 
land and  America,  being  confined  to  personal  necessaries  or 
ornaments,  and  having  no  possible  application  to  real  estate. 
Blackstone  says  the  word  signified  "  something  over  and 
above  her  dower ;  "  whereas,  as  a  late  English  writer  ob- 
serves, it  really  meant  something  of  her  own,  not  surrendered 
by  her  at  her  marriage  ;  something  reserved  and  kept  back 
from  the  dos,  or  fortune,  which  she  brought  her  husband.^ 

The  common-law  doctrine  of  paraphernalia  is  this :  that  the 
suitable  ornaments  and  wearing  apparel  of  a  married  woman, 
which  she  had  at  the  time  of  her  marriage,  or  which  come  to 
her  through  her  husband  before  or  during  coverture,  remain 
his  personal  property  during  his  life,  and  he  may  sell  and  dis- 
pose of  them  during  his  life  ;  but  such  as  remain  at  the  time 
of  his  death  belong  thenceforth  to  her  absolutely  as  her  para- 
phernalia? It  seems  that  he  may  even  give  them  away  while 
coverture  lasts,  in  the  exercise  of  his  marital  rights.  But  he 
certainly  cannot  bequeath  them  from  his  wife  ;  nor  on  princi- 
ple dispose  of  them  as  donatio  causa  mortis.'^ 

Paraphernalia  are  therefore  to  be  distinguished  from  the 
wife's  separate  property,  as  we  shall  jjresently  see,  inasmuch 
as  her  rights  are  perfected,  only  when  she  becomes  a  widow, 
while  the  property  is  alienable  not  by  herself,  but  by  her 

1  2  Bl.  Com.  436  ;  Macq.  Hus.  &  Wife,  147. 

2  Macq.  Hus.  &  Wife,  152.  Our  writers  sometimes  make  confusion  by  citing 
ma.xims  of  Roman  law  in  definition  of  English  doctrines.  See  2  Eoper  Hus. 
&  Wife,  140;  1  Bright  Hus.  &  "Wife,  286,  n. 

3  Tipping  V.  Tipping,  1  P.  Wms.  730 ;  1  Rolle,  911,  L.  35  ;  Com.  Dig.  Baron 
&  Feme,  Paraphernalia ;  Macq.  Hus.  &  Wife,  147,  148 ;  State  v.  Hays,  21  Ind. 
288.     See  Rawson  v.  Pennsylvania  R.  R.  Co.,  48  N.  Y.  212. 

*  2  Bl.  Com.  436  ;  Noye's  Max.  ch.  49. 

[178] 


EIGHTS   AND   DISABILITIES   OF   WIFE.  *  172 

husband,  during  his  life.^  Such  gifts  from  the  husband  are 
further  to  be  distinguished  from  gifts  bestowed  solely  upon 
the  wife  by  her  father,  or  b}^  a  relative,  or  even  by  a  stranger. 
For  in  the  latter  instance  they  would  be  deemed  gifts 
to  her  separate  use  ;  and  *theii,  if  received  with  the  *  173 
husband's  consent,  neither  he  nor  his  creditors  could 
afterwards  dispose  of  them.^ 

Mere  ornaments  for  a  parlor  are  not  to  be  treated  as  para- 
phernal property ,-5  Nor  can  articles  be  claimed  as  such  which 
are,  in  fact,  heirlooms.^  But  a  gold  watch  worn  liy  the  wife 
of  one  who  maintains  a  fair  social  position  may  be  treated  as 
paraphernal.^  A  "  necessary  bed  "  is  paraphernal.^  Jewels 
purchased  by  the  husband  and  worn  by  the  wife  with  her 
other  ornaments,  it  is  said,  become  her  j)Ciraphernalia  in  ab- 
sence of  evidence  to  the  contrary ;  while  family  jewels  by 
merely  being  worn  by  the  wife  do  not.'  Where  a  piece  of 
jewelr}^  in  possession  of  the  husband  at  the  time  of  marriage 
as  an  heirloom,  is  greatly  enhanced  in  value  by  adding  new 
diamonds,  and  is  then  given  the  wife  to  wear,  though  be- 
queathed to  his  heirs,  the  rule,  as  laid  down  by  Lord  Chan- 
cellor Macclesfield,  is  to  separate  the  new  diamonds  after  the 
husband's  death,  and  bestow  them  upon  the  widow  as  her 
paraphernalia,  leaving  the  heirs  to  enjoy  the  residue.^  And 
the  old  books  say  that  if  the  husljand  delivers  cloth  to  his 
wife  for  her  apparel,  and  dies  before  it  is  made  up,  she  shall 
have  the  cloth.^  The  question  of  value  is  not  material  in 
setting  off  the  widow's  paraphernalia,  so  long  as  the  articles 
are  suitable  to  her  degree.^*'  And  while  the  modern  cases 
which  turn  on  such  questions  are  rare,  especially  in  this 
country,  it  cannot  be  doubted  that  a  liberal  rule  would  at  this 
day  be  apj)lied  in  the  widow's  favor. 

•  Cro.  Car.  341 ;  Com.  Dig.  Baron  &  Feme,  Parapliernalia. 

2  2  Story  Eq.  Juris.  555.  *  Graham  v.  Londonderry,  3  Atk.  393. 

4  Calmady  v.  Calmady,  11  Vin.  Abr.  181,  182. 

5  TUexan  v.  Wilson,  43  Me.  186. 

6  See  Com.  Dig.  Baron  &  Feme,  Paraphernalia. 
"^  Jervoise  v.  Jervoise,  17  Beav.  56G. 

8  Calmady  ;;.  Calmady,  11  Vin.  Abr.  181,  182. 

9  1  Rolle,  911,  L.  35;  Com.  Dig.  Baron  &  Feme,  Paraphernalia. 
10  lb. ;  Macq.  Hus.  &  Wife,  148. 

[  17<J  ] 


*  173  HUSBAND   AND   WIFE. 

As  to  personal  ornaments,  it  seems  to  be  an  important 
element  in  the  title,  that  the  wife  should  be  seen  to  wear 
them  at  intervals.     Particularly  is  this  true  where  the  hus- 
band kept  them  in  his  own  possession,  for  otherwise  it 

*  174    might  be  said  *  that  he  never  gave  them  to  her.     But 

it  is  enough  to  establish  her  claim  that  he  had  allowed 
her  to  wear  them  on  birthdays  or  other  suitable  occasions.^ 

Paraphernalia  would  seem  to  be  so  far  personal  to  the 
widow,  that  if  not  claimed  by  her  during  her  lifetime,  they 
cannot  after  her  death  be  demanded  by  her  executor  or  ad- 
ministrator. Accordingly,  it  is  held  that  if  the  husband 
should  bequeath  them  to  her  for  life  and  then  over,  and  she 
should  make  no  election  to  have  them  as  her  paraphernal 
goods,  her  representative  after  her  decease  would  be  ex- 
cluded.^ But  in  a  recent  English  case,  not  only  was  the 
committee  of  the  widow,  being  a  lunatic,  permitted  to  elect 
in  her  stead  while  she  remained  alive  ;  but  upon  her  subse- 
quent death,  her  next  of  kin  were  allowed  to  come  in  and 
choose  whether  to  take  the  jmraphernalia  or  the  benefits 
given  her  under  her  husband's  will ;  and,  upon  their  choice 
of  the  former,  an  order  in  chancery  was  made  accordingly .^ 

The  wife's  paraphernal  property  is  subject  to  her  husband's 
debts  during  his  life  ;  for  in  truth  it  is  not  then  her  property 
at  all.*  Nor  can  she  maintain  an  indictment  against  any  one 
who  steals  it.  while  her  husband  is  alive.°  So,  too,  it  is  liable 
for  his  debts  after  his  death,  when  there  is  a  deficiency  of 
assets  in  the  administrator's  hands.^  But  even  then  her  nec- 
essary clothing  is  protected  ;  for,  in  the  words  of  an  ancient, 
judicial  resolution,  "  She  ought  not  to  be  naked  or  exposed 
to  shame  and  cold."  "^  And  in  many  of  the  United  States 
there  are  at  the  present  day  statutes  which  justly  reserve  to 

1  Graham  v.  Londonderry,  3  Atk.  393. 

^  Macq.  Hus.  &  Wife,  loO;  Clarges  v.  Albemarle,  2  Vern.  246;  Com.  Dig. 
Baron  &  Feme,  Paraphernalia. 

3  In  re  Hewson,  23  E.  L.  &  Eq.  283. 

*  Tllexan  v.  Wilson,  43  Me.  186;  1  Bright  Hus.  &  Wife,  288. 

6  State  V.  Hays,  21  Ind.  288. 

6  2  Bl.  Com.  436  ;  Macq.  Hus.  &  Wife,  147,  149 ;  Snelson  v.  Corbet,  3  Atk. 
869  ;  Howard  v.  Munifer,  5  Pike,  668;  Ridout  v.  Earl  of  Plymouth.  2  Atk.  104. 

7  1  RoUe,  911,  L.  85,  cited  in  Macq.  Hus.  &  Wife,  147. 

[IbO] 


RIGHTS   AND   DISABILITIES   OF  WIFE.  *  174 

the  widow,  in  any  event,  necessaries  in  the  house  at 

the  time  of  her  *  husband's  death,  and  the  ornaments    *  175 

and  clothing  of  herself  and  children.^ 

If  a  husband  pawn  his  wife's  paraphernalia  as  collateral 
security  for  money  borrowed,  and  give  power  to  the  lender  to 
sell  for  a  sum  certain  during  his  absence,  this  will  not  be 
deemed  an  absolute  alienation,  but  shall  stand  as  a  pledge 
redeemable  by  the  widow  ;  and  if  the  husband  have  left  suffi- 
cient to  redeem  (after  payment  of  all  his  debts),  she  is  entitled 
to  have  the  redemption  money  raised  out  of  his  personal 
estate.^  But  creditors  must  first  be  satisfied  in  all  cases  ; 
though  the  widow's  right  in  respect  to  such  property  is  supe- 
rior to  that  of  any  legatee  of  the  husband.^ 

Real  estate  is  to  be  appropriated,  in  payment  of  the  hus- 
band's debts  after  his  death,  before  the  widow's  paraphernal 
property  can  be  held  subject  to  the  demands  of  his  creditors. 
Such  at  least  is  the  English  practice  ;  and  where  paraphernal 
property  has  been  used  up  by  the  executor  or  administrator 
in  satisfaction  of  specialty  debts,  the  widow  is  allowed,  in 
equity,  to  stand  in  their  stead  to  reimburse  herself  out  of  the 
real  estate  in  possession  of  the  heir.*  In  this  country  a  sum- 
mary sale  of  the  husband's  real  estate,  under  direction  of  the 
Probate  Court,  is  usually  requisite,  where  the  personal  assets 
in  the  hands  of  his  executor  or  administrator  prove  inadequate 
to  meet  the  debts,  whether  by  specialty  or  simple  contract. 

An  English  writer  of  excellent  authority  on  this  subject 
distinguishes  between  the  case  where  the  devised  estate  is 
subject  to  a  charge  or  trust  for  the  payment  of  debts  from 
the  case  where  the  devised  estate  is  not  so  subjected. 
In  the  *  former  case  he  holds  the  widow  entitled  to  *  176 
have  the  assets  marshalled  as  against  the  devisee ;  but 

1  See  Mass.  Gen.  Sts.  c.  96,  §§  4,  5 ;  Ginochio  v.  Porcella,  3  Bradf.  Sur.  277. 

2  Graham  v.  Londonderry,  3  Atk.  393. 

3  lb. ;  Tipping  v.  Tipping,  1  P.  Wms.  729  ;  Ridout  v.  Earl  of  Plymouth,  2 
Atk.  104;  Burton  i'.  Pierpont,  2  P.  Wms.  80.  And 'even  though  contingent 
assets  come  to  hand  afterwards,  the  wife's  claim  is  gone.     lb. 

*  Snelson  v.  Corbet,  3  Atk.  370;  Aldrich  v.  Cooper,  8  Ves.  397  ;  2  Roper  Hus. 
&  Wife,  144  ;  Macq.  Hus.  &  Wife,  149.  Probably  in  England,  since  the  statute 
3  &  4  Will.  4,  c.  104,  which  makes  lands  of  all  kinds  assets  for  the  payment  of 
debts,  the  lands  are  absolutely  assets  for  satisfaction  of  the  widow's  claim.  Bell 
Hus.  &  Wife,  215. 

[181] 


*  176  HUSBAND   AND   WIFE. 

not  in  the  latter  case.^  We  find  no  autliority  to  support  this 
distinction.  It  would  certainly  trench  closely  upon  her  right 
to  hold  such  property  against  all  bequests  of  her  husband  to 
others ;  a  right  which  is  clearly  admitted  in  the  English 
courts.^  A  bequest  from  husband  to  wife  of  all  the  household 
goods,  furniture,  plate,  jewels,  and  the  like  (including  what 
in  point  of  fact  are  paraphernalia'),  does  not  debar  the  widow 
from  claiming  her  paraphernal  property,  as  such,  if  she 
chooses  to  set  up  her  lawful  privilege  as  against  her  hus- 
band's bequest.^ 

Letters  written  to  a  wife  by  a  former  husband  belong  to 
her  and  not  to  his  estate ;  and  her  own  gift  of  them  is  vahd 
as  against  the  executor  of  such  estate  or  her  second  hus- 
band> 

We  have  already  observed  that  a  wife  may  join  with  her 
husband  in  executing  a  mortgage  of  her  real  estate  as  security 
for  his  debts,  and  that,  if  this  mortgage  be  properly  fore- 
closed, and  equities  of  redemption  barred,  her  right  to  the 
real  estate  is  gone.^  Yet  the  courts  have  gone  as  far  as  they 
consistently  could  in  upholding  the  wife's  title  under  such 
circumstances.  In  the  first  place,  they  favor  her  right  to  the 
equity  of  redemption  as  against  her  husband  ;  in  the  second 
place,  they  allow  exoneration  or  reimbursement  from  her  hus- 
band's estate,  after  his  death,  where  the  assets  prove  sufficient 
for  that  purpose. 

In  general,  therefore,  it  is  ruled  in  courts  of  equity,  that 
the  equity  of  redemption  remains  in  the  wife  and  her  heirs. 
Accordingly,  when  the  marriage  is  dissolved  by  the  death  of 
the  husband,  the  widow,  or  her  heirs  after  her,  may  put  this 
equity  in  operation.     It  must  therefore  be  quite  manifest  that 

a  change   of  j)roperty  was  intended  during   the  hus- 
*  177    band's  life  before  *  his  widow  can  be  excluded.^     Thus, 

where  an  estate  belonging  to  the  wife  was  mortgaged, 

1  Note  by  Mr.  Jacob  to  2  Roper  Hus.  &  Wife,  145. 
*2  2  Bl.  Com.  436,  supra. 

s  Marshall  v.  Blew,  2  Atk.  217;  In  re  Hewson,  23  E.  L.  &  Eq.  283. 
*  Grigsby  v.  Breckenridge,  2  Bush,  480. 
5  See  last  chapter. 
«  Macq.  Hus.  &  Wife,  172. 

[  182  ] 


1 


RIGHTS   AND   DISABILITIES   OF  WIFE.  *  177 

and  the  equity  of  redemption  was  in  words  reserved  to  the 
husband  and  his  heirs,  the  court  held  that  there  was  never- 
theless a  resulting  trust  for  the  wife  and  her  heirs.^  And 
the  rule  is  general  that  where  husband  and  wife  mortgage  the 
wife's  estate,  and  the  equity  of  redemption  is  reserved  to  the 
husband  and  his  heirs,  without  recital  of  special  circum- 
stances to  show  an  intention  to  make  a  new  settlement  of  the 
estate,  the  husband  has  the  equity  of  redemption  only  jure 
uxoris?  And  in  considering  this  question  the  mere  form  of 
the  reservation  of  the  equity  of  redemption  will  not  of  itself 
be  held  sufficient  to  alter  the  previous  title.  In  such  a  case 
(where  fraud  is  out  of  the  question)  it  is  supposed  to  arise 
from  inaccuracy  or  mistake,  which  is  to  be  explained  and  cor- 
rected by  the  state  of  the  title  as  it  was  before  the  mort-- 
gage. 3 

But  in  the  leading  English  case  of  Jackson  v.  Lines ^  which 
came  before  the  House  of  Peers,  on  appeal  from  the  decree  of 
Lord  Eldon,  in  the  Court  of  Chancery,  the  rule  in  the  wife's 
favor  was  limited  at  this  point.  And  it  was  decided,  after  a 
full  examination  of  the  previous  cases  on  the  subject,  that 
wherever  the  transaction,  importing  more  than  a  mere  mort- 
gage security,  gives  satisfactory  evidence  of  an  intention  to 
effect  a  change  of  the  beneficial  interest,  the  husband  and  his 
heirs,  and  not  the  widow  or  her  heirs,  will  be  entitled  to  the 
equity  of  redemption.*  The  learned  opinion  in  this  case  was 
given  by  Lord  Redesdale,  and  Lord  Eldon  subsequently 
admitted  his  own  error  in  laying  down  a  contrary  doctrine. 
This  case  has  since  remained  as  the  correct  exposition  of  the 
English  law  on  this  subject.  And  it  may  be  added,  in  the 
emphatic  language  of  Lord  Eldon  on  another  occasion, 
"  If  it  clearly  appear  to  have  *  been  the  intention  of  *  178 
the  wife  that  the  husband  should  have  the  equity  of 
redemption,  he  7nust  have  it."  ^ 

1  Jackson  v.  Jones,  1  Bli.  115. 

2  Kuscombe  v.  Hare,  G  Uow,  1. 

•I  Per  Lord  Redesdale,  in  Jackson  v.  Innes,  1  Bli.  115. 

*  lb.     See  also  Sir  John  Leach,  in  Reeve  v.  Hicks,  2  Sim.  &  Stn.  40,3. 

*  Ruscombe  v.  Hare,  6  Dow,  I.  It  is  said  that  the  case  of  Jackson  v.  Innes 
is  the  only  marked  instance  in  which  a  judgment  of  Lord  Eldon's  was  ever 
reversed.     And  the  generous  candor  with  which  the  learned  hiwyer  admitted  his 

[  183  ] 


*  178  HUSBAND  AND   WIFE. 

To  the  wife  also  belongs  the  right  in  equity  to  have  her  es- 
tate exonerated  out  of  her  husband's  personal  and  real  assets. 
This  is  known  as  the  wife's  equity  of  exoneration.  The  prin- 
ciple is  that  the  wife,  when  mortgaging  her  property  for  her 
husband's  debt,  stands  in  the  position  of  a  surety,  and  there- 
fore may  claim  indemnity  from  the  principal  for  whose  benefit 
her  security  was  interposed. ^  Lord  Hardwicke  has  announced 
this  rule  with  clearness  and  precision.^  The  husband's  other 
creditors  have  no  preference  over  the  wife  on  marshalling  the 
assets  of  her  husband's  estate ;  but  she  is  entitled  to  the 
benefit  of  any  securities,  and  to  have  satisfaction  of  her  debt 
according  to  its  rank.  But  the  widow  may  waive  her  right 
of  exoneration  from  the  estate  of  her  deceased  husband,  and 
her  waiver  will  be  inferred  from  circumstances.^ 

In  this  country,  as  we  have  seen,  the  wife  is  regarded  as 
her  husband's  surety,  and  the  presumptions  are  in  her  favor.^ 
The  rule  as  to  her  equity  of  redemption  is  doubtless  quite  as 
liberal  as  that  laid  down  by  Lord  Redesdale  in  England. 
Perhaps  it  is  more  so,  but  authoritative  cases  on  this  point 
are  wanting,  and  recent  statutes  affect  the  whole  subject.  In 
New  York,  the  widow's  right  of  exoneration  is  ex- 

*  179    pressly  admitted.^     *  And  in  other  States,  the  wife's 

rights  as  surety,  with  reference  to  debts  of  her  late 
husband,  for  which  she  has  mortgaged  her  land,  are  very 
strongly  favored.^ 

Controversies  between  a  widow  and  her  husband's  adminis- 


error  serves  as  a  memorable  example  to  the  courts  of  successive  generations. 
To  Lord  Redesdale,  whose  politics  kept  him  in  comparative  seclusion  most  of 
his  life,  though  his  professional  reputation  was  great  in  his  day,  a  most  appropri- 
ate tribute  is  paid  by  Mr.  Macqueen,  in  his  excellent  treatise,  p.  180,  note. 

1  Macq.  Hus.  &  Wife,  181 ;  Bell  Hus.  &  Wife,  195 ;  Wotton  v.  Hele,  2  Saund. 
177  ;  1  Mod.  290. 

2  Robinson  v.  Gee,  1  Ves.  Sen.  252,  per  Lord  Hardwicke  ;  Parteriche  v.  Pow- 
let,  2  Atk.  f584 ;  and  see  Lord  Thurlow,  in  Clinton  v.  Hooper,  1  Ves.  Jr.  186,  to 
the  same  effect. 

3  Bell  Hus.  &  Wife,  195 ;  Clinton  v.  Hooper,  1  Ves.  Jr.  188.  But  see  Lancas- 
ter V.  Evors,  10  Beav.  154. 

*  See  supra,  p.  155. 

^  Vartie  i:  Underwood,  18  Barb.  561. 

«  Philbrook  v.  McEwen,  29  Ind.  347  ;  Hetherington  v.  Hixon,  46  Ala.  297. 

[184] 


4 

RIGHTS   AND   DISABILITIES   OF   WIFE.  *  179 

trator  are  not  unfrequent ;  and  it  is  manifest  that  at  the  com- 
mon law  the  widow's  situation  with  reference  to  personal  prop- 
erty, which  she  had  brought  with  her  into  the  marriage  state, 
was  often  extremely  hard.  Thus,  it  is  even  held  that  a  widow 
cannot  recover  from  her  husband's  administrator  goods  which 
came  to  her  as  a  wife,  although  her  husband  abandoned  her 
before  she  received  them,  and  never  returned  or  claimed  them, 
and  she  had  held  and  claimed  them  as  her  own  for  more  than 
twenty  years.^  But  equity  protects  restrictions  imposed  on 
trust  funds  for  her  benefit,  even  as  against  her  own  indiscreet 
conduct.^  And  instances  are  not  wanting  where  a  widow's 
hasty,  inconsiderate,  and  foolish  acts  with  reference  to  prop- 
erty rights  acquired  by  her  in  her  deceased  husband's  estate 
have  been  deemed  inoperative  ;  her  distributive  share  and 
allowances  being  preserved  for  her  by  the  courts  as  against 
herself,  so  to  speak.^  A  widow  must  not  intermeddle  with 
her  late  husband's  estate,  nor  assume  duties  which  properly 
devolve  upon  the  executor  or  administrator.  Hence  a  widow 
cannot  surrender  an  unexpired  lease  held  by  her  husband, 
and  take  another  lease  in  her  own  name  ;  for  manifestly  the 
lease  should  go  to  the  benefit  of  the  estate  as  assets.*  She  is 
bound  by  a  bona  fide  administrator's  sale,  made  with  her  con- 
sent.^ And,  when  administratrix  herself  of  her  husband's 
estate,  she  is  expected  to  enjoy  the  usual  rights  and  assume 
the  usual  responsibilities  pertaining  to  the  office. "^ 

The  common-law  obligation  of  the  widow  to  bury  her  de- 
ceased husband  rests  upon  weaker  foundations  than  the 
corresponding  obligation  of  the  husband.  In  truth  it  seems 
somewhat  inconsistent  witli  the  doctrine  of  coverture  ;  for 
why,  it  may  be  asked,  should  a  woman  answer  for  the  indi- 
gence of  one  whose  lawful  privilege  it  was  to  strip  her  of  her 
own  means  of  support  ?    Where  the  husband  leaves  an  estate, 

1  Bell  V.  Bell,  37  Ala.  536. 

*  Dunn  V.  Lancaster,  4  Bush,  581. 

3  See  MauU  v.  Vaughn,  45  Ala.  134 ;  Cammack  v.  Lewis,  15  Wall.  643. 

*  Keating  v.  Condon,  68  Penn.  St.  75.  And  see  Leach  v.  Prebster,  35  Ind. 
415. 

5  Anderson  v.  McGowan,  45  Ala.  462. 

«  See  Ready  v.  Hamm,  46  Miss.  422 ;  Fox  v.  Doherty,  30  Iowa,  334. 

[185] 


*  179  HUSBAND   AND   TVITE. 

the  funeral  expenses  are  to  be  paid  by  his  executor  or  adminis- 
trator, and  not  by  his  widow.  This  is  the  rule  both  in  Eng- 
land and  America  ;  and  it  is  doubtless  reasonable  so  far  as  it 
goes.^  But  in  an  English  case,  decided  not  many  years  ago, 
the  court  seemed  to  regard  this  subject  somewhat  differently, 
and  intimated  that  husband  and  wife  should  stand  upon  a 
like  footing,  as  regards  the  obligation  of  burying  one  another.^ 
Here  a  widow,  who  was  also  an  infant,  was  held  bound  by 
her  contract  for  the  expense  of  her  husband's  interment.  The 
decision  proceeded  upon  the  ingenious  doctrine,  that,  since  a 
husband  ought  to  bury  his  wife  and  lawful  children,  who  are 
the  personce  conjunctce  with  him,  as  a  matter  of  personal  bene- 
fit to  himself,  the  wife  should  do  the  same  by  her  husband, 
as  a  benefit  and  comfort  to  herself;  and  therefore  that  the 
case  comes  within  the  rule  of  law  which  makes  a  contract 
good  where  the  infant  is  a  gainer  by  it.^ 

Where  a  married  woman  contracts  with  authority  from  her 
husband  and  the  husband  dies  suddenly,  and  in  point  of  fact 
before  certain  purchases  were  made  on  his  credit,  is  his  estate 
liable,  or  is  liis  widow;  or  must  the  creditor  bear  the  loss? 
The  general  rule  undoubtedly  is  that  the  authority  of  an 
attorney  or  agent  expires  with  the  principal.  A  dead  man 
can  have  no  one  acting  by  his  name  and  authority.  And 
since  the  wife  contracts  only  as  her  husband's  agent  at 
*  180  the  common  *  law,  her  case  would  seem  to  fall  within 
the  general  doctrine.  Such  in  fact  was  the  ruling  of 
the  court  in  Blades  v.  Free^  where  a  man  who  had  some 
years  cohabited  with  a  woman,  who  passed  as  his  wife,  left 
her  and  her  family  in  England,  and  went  into  foreign  parts, 
where  he  died.^  Here  it  was  held  that  the  executor  was  not 
bound  to  pay  for  necessaries  supplied  to  her  after  his  death, 
although  before  information  of  the  event  had  reached  her.  In 
this  case,  however,  there  was  only  a  quasi  widow,  and  perhaps 
the  court  felt  the  stigma  of  an  illicit  cohabitation.  But  the 
precedent  proved  a  stumbling-block  in  the  next  case  of  Smout 

1  2  Redf.  Wills,  224 ;  2  Wms.  Ex'rs,  871 ;  Macq.  Hus.  &  Wife,  183. 

2  Chappie  V.  Cooper,  13  M.  &  W.  252. 
»  9  B.  &  Cr.  167  ;  4  Man.  &  Ry.  282. 

[186] 


RIGHTS   AND   DISABILITIES   OF  WIFE.  *  180 

V.  Ilherry}  A  man  who  has  been  m  the  habit  of  dealing  with 
a  butcher  for  meat  supplied  to  his  house,  went  abroad,  and 
his  wife,  who  remained  at  home,  continued  the  employment  of 
the  butcher.  Here  it  was  held  that  she  was  not  personally 
liable  for  meat  supplied  after  her  husband's  death,  and  pur- 
chased by  her  in  good  faith,  supposing  him  to  be  still  alive. 
The  principle  of  the  latter  case  seems  to  have  been,  that, 
although  the  authority  had  expired,  yet  the  agent  was  not  in 
fault,  nor  in  the  commission  of  any  fraud  ;  that  the  revocation 
occurred  by  act  of  God.  But  the  loss  had  to  fall  somewhere  ; 
so  the  court  put  it  upon  the  butcher.  These  seem  to  lie  the 
only  cases  of  importance  on  this  subject  in  England  ;  and  we 
find  none  in  this  country  to  shed  further  light.  Yet  questions 
of  this  sort  must  frequently  arise  in  the  dealings  of  people. 
The  modern  inclination  is  clearly  to  relax  somewhat  the  rigid 
rule  of  the  common  law  of  agency  and  to  favor  the  Roman 
doctrine,  which  binds  the  principal  or  his  estate  in  respect  to 
acts  done  in  good  faith  by  his  agent  before  notice  of  revoca- 
tion.^ 

*  It  is  held  that  where  family  necessaries  are  pur-  *  181 
chased  and  brought  into  the  house  during  the  last  ill- 
ness of  the  husband,  and  are  used  in  part  while  he  is  sick  and 
in  part  at  his  funeral,  his  estate  is  liable  to  the  person  who 
furnished  them.^  For  necessaries  furnished  the  family  while 
the  husband  was  living,  too,  under  circumstances  rendermg 
him  legally  liable,  the  wife  cannot  be  sued  after  his  death  ; 
and  even  if  she  then  promise  to  pay  them,  the  promise  is 
without  consideration  and  not  binding  upon  her."* 

1  10  M.  &  W.  1. 

2  Story  Agency,  §§  488,  497,  and  notes,  in  last  edition.  See  Bradford,  Surro- 
gate of  New  York  city,  in  Ginochio  v.  Porcella,  3  Bradf.  Sur.  277,  in  wliicli  this 
subject  is  ably  discussed,  though  the  case  in  question,  upon  a  close  examination, 
appears  to  have  decided  little  or  nothing.  Tiiis  able  lawyer  evidently  leans 
against  the  authority  of  Blades  v.  Free,  though  he  expresses  himself  very 
guardedly.  See  also  Macq.  Hus.  &  Wife,  129,  to  the  same  purport.  And  see 
Terry's  Appeal,  55  Penn.  St.  344.  But  a  bond  gfven  by  a  husband  for  the 
board  and  expenses  of  his  wife  at  a  hospital  is  terminated  by  his  death.  Stinson 
V.  Prescott,  15  Gray,  335.  The  question  of  notice  does  not  appear  to  have 
arisen  in  this  case,  and  in  fact  the  wife  was  not  treated  as  her  husband's  agent, 
in  the  usual  sense.  *  SterUng  v.  Potts,  2  South,  773. 

4  Smith  V.  Allen,  1  Lans.  101 ;  Carter  v.  Wann,  45  Ala.  343. 

[187] 


*  181  HUSBAND   AND  WIFE. 

\VTiere  a  widow  after  her  husband's  death  carries  on  his 
business  with  his  tools  and  material,  having  taken  out  admin- 
istration, she  will  be  presumed  to  manage  it  for  the  benefit  of 
his  estate  rather  than  in  her  personal  capacity ;  and  she  should 
sue  and  be  sued  accordingly. ^ 

1  Moseley  v.  Rendell,  L.  R.  6  Q.  B.  346. 


[188] 


WIFE'S   DOWER  AND   HOMESTEAD  RIGHTS.         *  182 


*  CHAPTER  IX.  *182 

THE    wife's   DOWER    AND   HOMESTEAD    RIGHTS. 

While  marriage  impresses  at  once  the  personal  property 
of  the  wife  with  a  new  title,  —  namely,  that  of  her  husband, 
—  the  personal  property  of  the  husband  remains  unaffected 
thereby.  He  may  buy,  sell,  and  dispose  of  his  own  goods  and 
chattels  after  marriage  as  before,  without  let  or  hindrance  from 
his  wife.  She  cannot  be  said  to  acquire  a  title  to  his  general 
personal  property,  actual  or  potential  (independent  of  a  gift 
or  settlement),  until  her  coverture  has  terminated.  Then 
her  rights  are  rather  those  of  a  widow  than  of  a  wife.  But 
as  to  the  husband's  real  estate,  which  in  old  times  was  the 
only  property  regarded  at  law  as  really  of  much  consequence, 
the  rule  has  always  been  otherwise.  The  husband's  possible 
Tife-interest  attached  to  the  wife's  lands  whenever  acquired 
by  her;  the  wife's  possible  life-interest  to  the  husband's  lands 
whenever  acquired  by  him.  The  husband's  estate  was  known 
as  curtesy,  the  wife's  as  dower.  These  estates  had  not,  per- 
haps, the  same  origin :  they  certainl}^  had  not,  in  all  respects, 
the  same  incidents ;  but  both  rights  were  known  in  England 
from  a  very  early  period,  and  both  have  remained  with  very 
little  change  down  to  a  recent  date  in  England  and  America. 
Each  estate  is  in  the  nature  of  a  possible  encumbrance,  and 
conveyancers  seek  to  get  rid  of  it  whenever  the  owner  of 
lands  wishes  to  pass  the  title  in  fee  to  another.  Dower,  to  be 
sure,  gave  the  widow  only  a  life-interest  to  the  extent  of  one- 
third,  while  curtesy  gave  the  surviving  husband  the  full  life- 
interest.  But  on  the  other  hand,  dower  became  absolute  in 
the  widow  when  she  outlived  her  husband,  while  curt- 
esy, as  we  have  seen,  never  *  attached  at  all  unless  the  *  183 
husband  outlived  his  wife  and  was  fortunate  enough  to 
have  had  a  child  by  her  besides.  So  that  in  these  respects 
the  rights  of  husband  and  wife,  on  the  whole,  if  not  equiv- 

[189] 


*  183  HUSBAND  AND   WIFE. 

alent,  were  nearly  so.  And  as  the  reader  may  have  already 
inferred,  the  general  rule  as  to  descent  of  real  estate  has  been 
that,  subject  to  the  widow's  dower,  the  lands  of  a  husband 
descend  to  his  own  heirs  ;  while  subject  to  the  surviving 
husband's  curtesy,  the  lands  of  a  wife  descend  to  her  own 
heirs ;  our  policy  being  to  preserve  real  estate  in  the  famil}^, 
so  to  speak,  of  the  respective  parties  to  a  marriage  in  default 
of  issue  capable  of  inheriting  from  both.^ 

Dower  is  to  be  defined  as  that  provision  which  the  law 
makes  for  a  widow  out  of  the  lands  or  tenements  of  her  hus- 
band.2  j^  jg  g^^jj^  ^q  ]jq  given  for  her  support  and  the  nurture 
of  her  children  ;  but  it  applies,  in  fact,  whenever  she  is  the 
survivor,  without  reference  to  her  actual  circumstances  as  to 
means  of  support  or  the  burden  of  a  famil}^  Dower  extends 
to  all  estates  of  inheritance  which  the  husband  has  held  at  any 
period  of  the  coverture  in  his  own  right,  and  which  any  issue 
of  hers  might,  if  born,  possibly  inherit. 

The  word  dower  is  of  ancient  origin,  and  seems  to  come 
from  the  word  dos  at  the  civil  law,  whicli,  however,  signified 
something  quite  different,  and  more  nearly  approaching  what 
we  express  by  the  term  doAvry.  Whether  the  custom  of 
dower  was  introduced  into  England  by  the  Saxons,  or  came 
over  with  tlie  Normans,  is  a  disputed  question  ;  but  it  was 
clearly  established  at  or  before  the  reign  of  Henry  III.  An 
early  writer  remarks  that  "  tenant  in  dower  is  so  much  fa- 
vored as  that  it  is  the  coiiimon  byword  of  the  law  that  the 
law  favoreth  three  things:  life,  liberty,  dower." ^  But  these 
three  things  do  not  seem  to  have  kept  an  equal  pace  in  the 
march  of  civilization. 

There  were  various  kinds  of  dower  at  the  English  law,  one 
only  of  which  —  namely,  dower  at  common  law  —  is  in  use 
in  this  country.  Dower  at  common  law  extends  to  one-third 
of  the  husband's  real  estate,  and  is  often  known  as  the 
"  widow's  thirds,"  though  of  course  inapplicable  in  this  sense 

1  See  1  Washb.  Real  Prop.  127.  147;  Jenks  v.  Langdon,  21  Ohio  St.  362. 

2  Co.  Litt.  80  a;  2  Bl.  Com.  130;  1  Washb.  Real  Prop.  146. 

8  Bac.  Law  Tracts,  331.     See  1  Washb.  Real  Prop.  147  ;  Wright  Ten.  191 ; 
Co.  2(1  Inst.  16  ;  2  Bl.  Com.  129 ;  1  Cruise  Dig.  162. 
[  l^'O  ] 


I 


WIFE'S   DOWER  AND   HOMESTEAD   RIGHTS.         *  183 

to  her  distributive  share  of  personal  property.  Ancient  cus- 
toms varied  the  proportion  somewhat  in  England;  thus  gav- 
elkind gave  one-half  instead  of  one-third,  and  was  limited  to 
widowhood.  The  other  species  of  dower  were  abol- 
ished by  statute  in  England  *  in  the  time  of  Charles  *  184 
II.,  after  having  previously  fallen  into  general  disuse.^ 

The  magna  charta  of  Henry  III.,  which  established  and 
defined  the  rule  of  dower  for  future  guidance,  besides  reliev- 
ing the  widow  of  certain  burdens  imposed  upon  heirs  at  the 
feudal  law,  distinctly  set  forth  the  proportion  of  which  she 
should  be  endowed  in  her  husband's  lands,  and  further  pro- 
vided that  she  might  tarry  forty  days  after  her  husband's 
death  in  her  husband's  house .^  This  last  privilege  has  been 
since  known  as  the  widow's  quarantine^  and  has  been  recog- 
nized by  statute  law  in  some  of  the  United  States.^  It  was 
designed  manifestly  as  something  preliminary  to  the  assign- 
ment of  dower. 

Dower  attaches  to  all  lands,  tenements,  or  hereditaments, 
coriDoreal  and  incorporeal,  of  which  the  husband  may  have 
been  seised  in  fee  or  in  tail.'*  But  the  husband's  estate  must 
have  been  one  of  inheritance,  since  the  wife's  estate  is  said  to 
be  a  mere  continuance  of  the  estate  of  her  husband.  Very 
nice  questions  have  arisen  as  to  what  constitutes  an  estate  of 
inheritance.  Thus  where  a  husband  has  a  life-estate  with 
fee-simple  in  the  heirs  of  his  body,  his  wife  cannot  claim 
dower.^  Nor  can  she  claim,  even  though  he  holds  an  estate 
for  another's  life,  and  dies  before  the  cestui  que  vie.^ 

The  three  essentials  of  dower  nearly  correspond  with  those 
of  curtes}^ :  birth  of  issue,  as  we  have  said,  not  being  requi- 
site. They  are  marriage,  seisin  of  the  husband,  and  his 
death.     But  a  careful  comparison  of  the  two  estates  at  the 

1  Stat.  12  Car.  2,  c.  24.  See  1  Waslib.  Real  Prop.  149,  and  2  Bl.  Com.  133, 
as  to  tliese  ancient  kinds  of  dower  ;  dower  ad  ostium  ecclesia:,  dower  ex  assensa 
patris,  and  dower  dc  la  ]>lus  belle. 

2  2  El.  Com.  135. 

3  Mass.  Gen.  Stats,  c.  96,  §§  4,  5 ;  Wiialey  v.  Whaley,  50  Ms.  577 ;  Young 
V.  Estes,  69  Me.  441. 

*  2  Bl.  Com.  131 ;  1  Washb.  Real  Prop.  162. 
»  Burris  v.  Page,  12  Mis.  358 ;  1  Washb.  Real  Prop.  152. 
6  1  Waslib.  Real  Prop.  153 ;  Park  Dower,  48;  Gillis  v.  Brown,  5  Cow.  888  ; 
Fisher  v.  Grimes,  1  S.  &  M.  Ch.  107 ;  2  Bl.  Com.  129. 

[  191  ] 


*  184  HUSBAND    AND   WIFE. 

old  law  shows  some  inequalities  :  thus  while  the  hus- 

*  185    band  might  have  curtesy  in  the  wife's  trust  *  property, 

the  wife  could  not  claim  dower  from  that  of  her  hus- 
band. This  injustice  grew  out  of  an  apparent  necessity  :  it 
was  remedied  in  England  by  the  late  dower  act,  and  appar- 
ently never  had  a  firm  foothold  in  the  United  States.^ 

The  only  essential  of  dower  which  calls  for  especial  notice 
is  the  second ;  for  we  have  elsewhere  considered  what  con- 
stitutes a  marriage  ;  and  as  to  the  death  of  a  husband  leaving 
a  widow  surviving,  it  need  only  be  remarked  that,  recogniz- 
ing that  legal  presumption  of  death  which  arises  from  one's 
absence  for  seven  years  without  being  heard  from,  our  courts 
sometimes  allow  dower  where  the  fact  of  the  husband's  death 
cannot  be  positively  established.^  What,  then,  is  that  seisin  of 
the  husband  which  entitles  his  widow  to  dower  in  the  premises 
at  the  common  law  ? 

Briefly,  then,  dower  does  not  attach  to  a  mere  reversion  or 
remainder  expectant  upon  a  freehold  in  another,  so  long  as 
that  freehold  remains  outstanding.  And  no  more  could  cur- 
tesy ;  the  freehold  must  terminate  during  marriage,  in  order 
that  there  be  a  sufficient  seisin  in  the  husband  to  support  the 
dower  interest ;  in  other  words,  his  estate  of  inheritance  must 
become  a  vested,  not  remain  an  expectant  right .^  But,  on 
familiar  principles  of  real-estate  law,  the  intermediate  estate 
being  less  than  a  freehold,  as  a  mere  lease  for  years,  a  seisin  of 
the  reversion  or  remainder  in  fee  will  suffice.*  A  merger  of 
estates  so  as  to  unite  the  inheritance  in  the  husband  gives 
dower ;  so  dower  can  be  claimed  in  the  estate  of  a  tenant  in 
common,  though  not,  of  course,  in  the  estate  of  one  joint-ten- 
ant who  leaves  another  surviving  him  ;  even  to  exhaustion  in 
mines  owned  by  the  husband  which  had  been  opened  during 
his  lifetime  ;  generally  in  wild  lands  in  our  country,  at  the 
present  day,  though   perhaps  not   at    the  common  law ;    in 

1  1  Washb  Real  Prop.  163,  and  cases  cited  ;  stat.  3  &  4  Will.  4,  c.  105. 
-  Foulks  V.  Rhea,  7  Bush,  568. 

3  1  Washb.  Real  Prop.  154,  and  American  cases  cited ;  4  Kent  Com.  39 ; 
Eidredge  v.  Forrestal,  7  Mass.  'J53. 

*  1  Ld.  Rayra.  326 ;  Kitchens  v.  Kitchens,  2  Vern.  408. 

[  192  ] 


WIFE'S   DOWER  AND   HOMESTEAD   EIGHTS.       *  185 

various  old-fashioned  rights  by  way  of  inheritance  which  are 
mentioned  in  the  books ;  and  in  general  wherever  no  possi- 
bility continues  interposed  to  prevent  the  husband's  estate 
from  becoming  one  of  entire  inheritance  during  marriage.^ 
Since  equity  impresses  land  with  the  fictitious  character  of 
personalty,  upon  coDsideration  of  the  actual  circumstances 
attending  its  purchase  and  the  purpose  for  which  it  is  held,  it 
is  not  always  easy  to  say  whether  a  widow  can  claim  dower  in 
partnership  lands.'^^  As  to  lands  given  or  taken  in  exchange 
during  her  husband's  lifetime,  the  exchange  being  of  obviously 
equal  interests,  the  rule  is  not  quite  clear,  though  it  would 
seem  that  the  widow  will  be  put  to  her  election  between  the 
parcels.^ 

Of  the  earlier  and  later  rule  concerning  the  wife's  right  of 
dower  in  her  husband's  trust  property  we  have  just  spoken ; 
and  although  that  right  is  now  very  generally  recognized  in 
England  and  America,  it  is  doubtless  only  coextensive  with 
the  husband's  beneficial  interest  in  the  land ;  the  rule  could 
not  possibly  give  the  widow  of  a  trustee  dower  in  land  held 
by  him  merely  as  such  and  for  others,  without  sanctioning 
robbery  of  the  beneficiaries.^  Dower  in  trust  property,  at  the 
present  day,  is  most  frequently  considered  Avith  reference  to 
the  foreclosure  of  mortgages ;  and  here  a  court  of  equit}' 
applies  a  most  Hberal  rule :  for  while  the  widow  of  the  mort- 
gagee cannot  claim  dower  in  the  mortgaged  premises  until 
after  foreclosure,  the  mortgagor's  widow  not  only  has  every 
reasonable  facility  afforded  her  for  discharging  the  encum- 
brances upon  her  husband's  death  whenever  it  may  enure  to 
her  advantage  to  do  so,  but  may  claim  dower  in  the  equity  of 
redemption  at  all  events,  whether  the  mortgage   was  exe- 

1  1  Washb.  Heal  Prop.  157-167;  Mayburry  l:  Erien,  15  Pet.  21;  Reynard  v. 
Spence,  4  Beav.  103  ;  Park  Dow.  58,  72 ;  Billings  v.  Taylor,  1  Pick.  460 ;  Ste- 
vens y.  Owen,  25  Me.  94;  4  Kent  Com.  40;  2  Bl.  Com.  132.  See  Miller  i'. 
Talley,  48  Mis.  503. 

'^  Story  Partn.  §§  92,  93;  1  Washb.  150,  160;  Park  Dow.  106;  Duhring  v. 
Duhring,  20  Mis.  174;  Hawley  v.  James,  5  Paige,  451  ;  Smith  v.  Smith,  5  Ves. 
189. 

»  1  Washb.  158  ;  Mosher  v.  Mosher,  32  Me.  412 ;  Stevens  v.  Smith,  4  J.  J. 
Marsh.  64. 

*  See  Hill  Trustees,  269 ;  Cooper  v.  Whitney,  3  Hill,  97  ;  Bartlett  i-.  Gonge, 
5  B.  Monr.  162, 

13  [  193  ] 


*  185  HUSBAND   AND   WIFE. 

cnted  before  or  after  marriage,  and  upon  foreclosure  and  sale 
of  the  premises  for  breach  of  condition  have  her  interest  pro- 
tected in  the  distribution  of  the  proceeds.^ 

The  husband's  seisin,  therefore,  was  not,  even  at  common 
law,  necessarily  one  in  fact  or  an  actual  seisin  ;  to  support  the 
wife's  dower,  it  was  enough  that  he  had  a  seisin  in  law,  with 
a  right  to  an  immediate  seisin  in  fact.  His  seisin  might  not 
be  an  indefeasible  one,  yet  her  claim  was  good  so  long  as  it 
Avas  not  actually  defeated.^  A  momentary  seisin  is  enough; 
as  in  the  old  case  where  a  father  and  son  were  hanged  together, 
and  the  latter  being  seen  to  struggle  longer  than  the  former, 
was  decided  to  have  inherited  the  land  from  his  father  as  he 
swung,  so  as  to  give  to  his  own  widow  a  right  of  d'ower 
therein.^  But  the  seisin  though  momentary  should  be  bona 
fide  and  beneficial,  and  not  by  way  of  conduit  merely,  as 
where  one  purchases  with  a  simultaneous  reconveyance  to 
secure  the  purchase-money.*  Not  only  is  the  attempt  of  a 
husband  to  defraud  his  wife  of  her  dower  interest  in  his  lands 
readily  frustrated  in  the  courts,  but  the  widow  now  very  gen- 
erally finds  her  claim  sufficiently  supported  by  a  mere  right  of 
entry  in  the  husband.^  That  equitable  seisin  which  now  sup- 
ports dower  in  trust  estates  corresponds  substantially  to  the 
legal  seisin,^ 

Dower  may  be  barred  in  various  ways.  The  wife's  elope- 
ment, followed  by  adultery,  was  made  a  cause  of  forfeiture  by 

1  1  Washb.  Real  Prop.  164,  165  ;  4  Kent  Com.  43,  46 ;  Curren  v.  Driver,  33 
Ind.  480  ;  Sargeant  v.  Fuller,  105  Mass.  119 ;  Pickett  v.  Buckner,  45  Miss.  226  ; 
Hart  V.  Logan,  49  Mis.  47  ;  Irvine  v.  Armistead,  46  Ala.  863;  Peckham  r.  Had- 
wen,  8  R.  I.  160 ;  State  Bank  v.  Hinton,  21  Ohio  St.  509. 

As  to  several  mortgages  in  some  of  which  the  wife  has  not  released  dower, 
see  Sheldon  v.  Patterson,  55  III.  507.  As  to  dower  in  land  patents,  see  Johnson 
V.  Parcels,  48  Mis.  549. 

^  2  Bl.  Com.  130,  131  ;  1  Washb.  173-175;  Atwood  v.  Atwood,  22  Pick.  283  ; 
Dunham  v.  Osborne,  1  Paige,  635;  Whithead  v.  Mallory,  4  Cusli.  138;  Butler 
V.  Cheatham,  8  Bush,  598. 

3  Cro.  Eliz.  503 ;  2  Bl.  Com.  132 ;  4  Kent  Com.  39 ;  Wheatley  v.  Calhoun, 
12  Leigh,  264. 

*  See  Slaughter  v.  Culj)epper,  44  Geo.  319 ;  Pendleton  v.  Pomeroy,  4  Allen,  510. 

*  Act  3  &  4  Will.  4,  c.  105  ;  1  Washb.  Real  Prop.  174,  and  ;i. ;  Baker  v.  Chase, 
6  Hill,  482 ;  Emerson  v.  Harris,  6  Met.  475. 

•>  See  further,  as  to  equitable  estates,  2  P.  Wms.  715;  4  Bro.  C.  C.  521; 
Robinson  i;.  Miller,  2  B.  Monr.  284 ;  1  Washb.  Real  Prop.  182-185. 

[194  J 


WIFE'S   DOWER   AND   HOMESTEAD  RIGHTS.         *  185 

an  old  English  statute  ;  and  at  this  day  it  is  generally  enough 
to  add  that  a  divorce  from  bonds  of  matrimony  procured  during 
the  lifetime  of  the  parties  puts  an  end  to  dower  rights,  except  so 
far  as  legislation  may  save  it.  The  American  policy  is  appar- 
ently to  make  the  wife's  misconduct  the  ground  of  forfeiture 
under  the  divorce  laws.^  By  her  own  acts  sometimes,  in  the  na- 
ture of  an  estoppel ;  by  lapse  of  time  ;  by  a  judicial  sale  ;  by  the 
defeat  of  her  husband's  defeasible  title ;  by  her  own  jointure  ; 
and,  perhaps,  by  an  exercise  of  the  right  of  eminent  domain  on 
the  part  of  government,  —  a  wife  may  be  debarred  from  receiv- 
ing her  dower.^  But  usually  where  the  husband  means  to  sell 
his  land,  the  wife  joins  him  in  a  conveyance  during  his  life- 
time, in  compliance  with  certain  statute  formalities,  for  the 
purpose  of  releasing  dower  ;  and  if  this  be  properly  done,  her 
title  becomes  for  ever  extinguished  as  against  the  purchaser 
and  his  heirs  and  assigns.^ 

The  right  of  a  wife  to  dower  becomes  complete  on  the 
husband's  death,  leaving  her  surviving  him.  Until  dower 
has  been  assigned  her,  the  position  she  occupies  is  a  peculiar 
one  ;  she  has  rather  a  right  than  an  estate  ;  but  the  moment 
dower  has  been  assigned  and  she  enters  upon  the  assigned 
premises,  the  freehold  is  vested  in  her  by  virtue  and  in  con- 
tinuance of  her  husband's  seisin.*  Being  entitled  to  a  life- 
third  in  the  lands,  an  assignment  of  her  portion  may  be  made 
accordingly;  usually  by  judicial  proceedings.  But  it  is  at 
this  day  quite  common  for  the  heirs  to  pay  the  widow  one- 

1  Statute  Westminster  2 ;  1  Washb.  Real  Prop.  196,  258,  n.;  4  Kent  Com. 
53;  1  Cruise  Dig.  175;  1  Bish.  Mar.  &  Div.  §§  661,  662;  2  Bl.  Com.  130; 
Coggshall  V.  Tibbetts,  3  N.  H.  41 ;  AVoodward  i'.  Dowse,  10  C.  B.  n.  s.  722;  4 
Am.  Law  Rev.  401. 

2  1  Washb.  203-208,  217,  218  ;  Carson  v.  Murray,  3  Paige,  483  ;  4  Kent  Com. 
70  ;  Tisdale  v.  Risk,  7  Bush,  139  ;  Runnells  v.  Webber,  59  Me.  488 ;  Ervin  v. 
Brady,  48  Mis.  560 ;  Sheldon  v.  Bradley,  37  Conn.  324. 

3  1  Washb.  200,  201,  and  cases  cited  ;  Uip  v.  Campbell,  19  Pcnn.  St.  361. 
See  supra,  ch.  6,  as  to  wife's  conveyances  in  general.  As  to  effect  of  wife's 
release  of  dower  in  her  husband's  fiaudulent  conveyance,  see  1  Washb.  Real 
Prop.  202.  And  see  Davis  v.  McDonald,  42  Geo.  205 ;  White  v.  Graves,  107 
Mass.  325;  Wyman  v.  Fox,  59  Me.  100;  Lockett  v.  James,  8  Bush,  28. 

*  As  to  methods  and  etJect  of  assignment,  see  1  Washb.  Real  Prop.  222-250 ; 
Park  Dow.  339;  4  Kent  Com.  61  ;  Jones  v.  Brewer,  1  Pick.  314;  Flaherty  v. 
Sutton,  49  Mis.  583;  Shepardson  v.  Rowland,  28  Wis.  108;  Wooster  v.  Hunts 
Lyman  Iron  Co.,  38  Conn.  2-56. 

[195] 


*  185  HUSBAND  AND   WIFE. 

third  of  the  net  rents  during  her  natural  life  where  the  lands 
are  not  to  be  sold,  or  else  purchase  her  share  outright  for  a 
fixed  sum,  computed  according  to  the  annuity  tables.^ 

Manifestly  m  ancient  theory  the  widow's  dower  was  an 
independent  and  valuable  interest.  But  in  England,  through 
the  medium  of  trusts  and  the  operation  of  the  doctrine  already 
noticed,  the  conveyancers  for  generations  have  been  enabled 
to  defeat  this  estate.  The  late  English  Dower  Act,  3  &  4 
Will.  IV.  c.  105,  while  it  places  dower  and  curtesy  on  a  like 
favorable  footing  as  to  trust  estates,  provides  further  that  no 
widow  shall  be  entitled  to  dower  "  out  of  any  land  which 
shall  have  been  absolutely  disposed  of  by  her  husband  in  his 
lifetime  or  by  his  vail."  ^  Little,  therefore,  is  left  for  the 
law  to  operate  upon ;  for  the  husband,  by  his  independent 
act,  may  now  extinguish  all  dower  encumbrances  whatsoever. 

Jointures,  a  species  of  provision  in  lieu  of  dower,  are  little 
known  at  the  present  day  in  England ;  nor  were  they  ever  of 
much  importance  in  this  country.^ 

While  the  law  of  dower  has  been  gradually  fading  out  of 
sight  in  England,  it  attains  its  fuller  development  in  this 
country.  Curiously  enough,  most  of  the  modern  cases  on  this 
subject  are  x\mer  can.'*  Our  local  statutes  have  very  gener- 
ally favored  the  widow's  rights,  and  unless  she  has  joined  her 
husband  in  his  conveyances  during  his  life,  she  may  assert 
the  privilege  at  his  death.  But  dower  is  found  a  great  incon- 
venience in  an  age  when  real  estate  passes  from  hand  to  hand 
as  an  article  of  commercial  traffic  ;  and  legislatures  show  some 

1  Cheney  v.  Tierce,  38  Vt.  515;  Clark  v.  Tompkins,  1  S.  C.  n.  s.  119; 
McLaughlin  v.  McLaughlin,  22  N.  J.  Eq.  505. 

2  Wras.  Real  Prop.  194  ;  1  Washb.  Real  Prop.  219  ;  Macq.  Hus.  &  Wife,  165. 
The  English  dower  act  went  into  effect  in  1834.  See  /«  re  Hall's  Estate,  L.  R. 
9  Eq.  179. 

3  See  Wms.  Real  Prop.  217,  notes  ;  1  Washb.  Real  Prop.  261-274  ;  Prather 
V.  McDowell,  8  Bush,  47.  The  wife  is  frequently  by  statute  permitted  to  take 
a  provision  under  her  husband's  will,  in  heu  of  dower,  at  her  election.  See 
Jennings  r.  Jennings,  21  Ohio  St.  56  ;  Richart  v.  Richart,  30  Iowa,  465;  Kent  v. 
Dunham,  106  Mass.  586  ;  Kreiser's  Appeal,  69  Penn.  St.  194. 

*  1  Washb.  Real  Prop.  257,  258  ;  2  Crabb  Real  Prop.  154,  155 ;  Hoffman  v. 
Savage,  15  Mass.  130 ;  Symmes  v.  Drew,  21  Pick.  278 ;  Childs  v.  Smith,  1  Md. 
Ch.  483 ;  Crockett  v.  Crockett,  2  Ohio  St.  180 ;  Park  Dower,  355 ;  1  Washb. 
Real  Prop.  168. 

[196] 


WIFE'S   DOWER  AND    HOMESTEAD   RIGHTS.  *  185 

disposition  to  get  rid  of  it  altogether,  together  -with 
curtesy.  In  *  New  York  the  widow  can  only  claim  *  186 
her  dower  out  of  lands  of  which  her  husband  died 
seised.^  In  several  States  her  interest  is  treated  as  something 
for  the  benefit  of  herself  and  children  jointly.  In  others,  the 
"  thirds  "  are  dispensed  with,  and  a  different  rate  is  fixed. 
And  finally,  the  State  of  Indiana  has  set  a  good  example  by 
abolishing  both  curtesy  and  dower,  and  substituting  in  behalf 
of  husband  and  wife  an  interest  in  one  another's  real  estate, 
remaining  at  decease,  on  principles  analogous  to  the  distribu- 
tion of  personal  property  of  intestates ;  thus  placing  both 
sexes  on  the  mutual  footing  of  justice,  and  treating  lands  and 
personal  estate  as  subject  to  analogous  rules.^ 

The  homestead  may  properly  be  considered  in  connection 
with  dower  ;  for  although  this  right  is  not  strictly  pei'sonal 
to  married  women,  inasmuch  as  it  exists  for  the  benefit  of 
both  wife  and  children,  it  is  an  encumbrance  upon  the  real 
estate  of  the  husband  which  is  generally  released  by  the  wife 
in  connection  with  her  dower.  The  homestead  system  is  of 
recent  origin,  is  peculiar  to  our  American  States,  and  exists 
for  protection  against  the  husband's  creditors.  The  policy 
on  which  it  rests,  by  no  means  a  new  one  in  our  legislation,  is 
that  a  householder  with  a  family  shall  always  have  a  place  of 
shelter  where  legal  process  cannot  reach  him.  While  open 
to  some  serious  objections,  as  concerns  the  rights  of  creditors, 
the  homestead  system  is  to  be  warmly  commended  in  respect 
of  the  encouragement  it  affords  to  agriculture,  and  still  more 
as  offering  rewards  for  domestic  fidelity.^ 

1  N.  Y.  Stats.  1860,  March  20. 

2  1  Ind.  Sts.  (1862)  291  et  seq.  And  see  1  Washb.  Real  Prop.  219,  and  notes  ; 
4  Kent  Com.  36,  and  statutory  changes  in  notes.  See  Tliornton  v.  Thornton, 
45  Ala.  274 ;  Barker  v.  Dayton,  28  Wis.  367 ;  Hughes  v.  Merritt,  67  N.  C.  386, 
construing  late  statutes  ;  Sturdevant  v.  Norris,  30  Iowa,  65. 

"*  See  1  Washb.  Real  Prop.  3d  ed.  325  et  scj.,  where  tliis  system  is  detailed. 
And  see  Cipperley  v.  Rhodes,  53  111.  346 ;  West  v.  Ward,  26  Wis.  579  ;  Thorns 
V.  Thorns,  45  Miss.  263. 

[197] 


*  187  HUSBAND  AND  WIFE. 


*187  *  CHAPTER   X. 

THE    wife's   SEPAKATE    ESTATE  ;    ENGLISH    DOCTRINE. 

Emerging  from  coverture  and  tlie  common  law,  we  come 
out  into  the  light  of  equity  ;  and  here  all  things  assume  a  new 
aspect.  The  married  woman  is  no  longer  buried  under  legal 
fictions.  She  ceases  to  hold  the  strange  position  of  a  being 
without  an  existence,  one  whose  identity  is  suspended  or  sunk 
in  the  status  of  her  husband  ;  she  becomes  a  distinct  person, 
with  her  own  property  rights  and  liabilities.  Her  condition 
is  not  as  independent  as  before  marriage  ;  this  the  very  idea 
of  the  marriage  relation  and  the  disabilities  of  her  sex  forbid. 
But  she  is  dependent  only  so  far  as  the  laws  of  nature  and  the 
forms  of  society  make  her  so ;  while  her  comparative  feeble- 
ness renders  her  the  special  object  of  chancery  protection, 
whenever  the  interests  of  herself  and  her  husband  clash  to- 
gether. She  may  contract  on  her  own  behalf;  she  may  sue 
and  be  sued  in  her  own  name  ;  she  may  hold  lands,  goods,  and 
chattels  in  her  own  right,  which  property  is  known  as  the 
wife's  separate  estate,  or  estate  limited  to  the  wife's  separate 
use. 

The  doctrine  of  the  wife's  separate  estate  originated  in  the 
spreading  conviction  that  it  was  expedient  for  the  interests  of 
society  that  means  should  exist  by  which,  upon  marriage, 
either  the  parties  themselves  by  contract,  or  those  who  in- 
tended to  give  bounty  to  a  family,  might  secure  property 
without  that  property  being  subject  to  the  control  of  the  hus- 
band.i     In  England,  this  doctrine  was  established  more  than 

a  century  ago,  and  to  the  equity  courts  belong  the 
*  188    credit  of  the  invention.^      *  While  at  common  law  the 

separate  existence  of  the  wife  was  neither  known  nor 

1  Rennie  v.  Ritchie,  12  CI.  &  Fin.  234 ;  Peachey  Mar.  Settl.  259. 

2  Harvey  v.  Harvey,  1  P.  Wms.  124  ;  Woodmeston  v.  Walker,  2  R.  &M.  205  ; 
TuUett  V.  Armstrong,  1  Beav.  21. 

[  198  ] 


WIFE'S  SEPARATE  ESTATE;  ENGLISH  DOCTRINE.     *  188 

contemplated,  equity  considered  that  a  married  woman  was 
capable  of  possessing  property  to  her  own  use,  independently 
of  her  husband  ;  and  the  courts  gradually  widened  and  de- 
veloped this  principle,  until  it  became  fully  settled  that, 
liowever  the  wife's  property  might  be  acquired,  whether 
through  contract  with  her  husband  before  marriage,  or  by 
gift  from  him  or  from  any  stranger  independently  of  such  con- 
tract, equity  would  protect  it,  if  duly  set  apart  as  her  separate 
estate,  no  matter  though  the  husband  himself  must  be  held  as 
the  trustee  to  support  it.^ 

This  great  change  in  the  jurisprudence  of  England  was 
effected  by  a  few  great  men  without  any  help  from  the  legis- 
lature. The  Court  of  Chancery  in  this  as  in  other  respects 
recognized  its  true  function  of  making  the  law  work  justice, 
by  accommodating  its  operation  to  the  altered  circumstances 
of  society .2  Obscure  and  doubtful  indications  of  the  wife's 
separate  estate  are  found  as  early  as  the  reign  of  Queen 
Elizal)eth.  It  seems  to  have  been  plainly  recognized  by  Lord 
Nottingham,  Lord  Somers,  and  Lord  Cowper.  In  Lord  Ilard- 
wicke's  time  it  was  perfectly  established  ;  and  Lord  Thurlow, 
in  sanctioning  the  clause  against  anticipation,  prevented  the 
wife  herself  from  destroying  the  fabric  which  had  been  reared 
for  her  benefit.^ 

Where  property  comes  to  the  wife's  separate  use,  it  is 
treated  in  equity  as  trust  estate  of  which  she  is  cestui  que 
trust.  Yet  it  is  not  actually  necessary  that  the  instrument 
constituting  the  separate  use  should  itself  make  an  appoint- 
ment of  trustees.  Formerly  the  rule  was  otherwise  ;  but  at 
the  present  day  equity  makes  the  husband  a  trustee  and  thus 
supports  the  trust.*  And  where  a  trustee,  regularly 
appointed,  in  breach  of  his  duty ,  and  *  without  the  *  189 
privity  of  the  wife,  pays  the  trust-money  over  to  the 

1  Tiillett  V.  Armstrong,  1  Beav.  21  ;  Peachey  Mar.  Settl.  2G0,  and  cases  cited. 

2  Macq.  Hus.  &  Wife,  284. 

'  See  Pybus  v.  Smith,  4  Bro.  C.  C.  485 ;  Tullett  v.  Armstrong,  per  Lord 
Langdale,  1  Beav.  22  ;  Macq.  Hus.  &  Wife,  285. 

*  Bennett  v.  Davis,  2  P.  Wms.  316 ;  Davison  v.  Atkinson,  5  T.  R.  435 ;  Mes- 
senger V.  Clarke,  5  Exch.  393 ;  Peachey  Mar.  Settl.  260. 

[199] 


*  189  HUSBAND   AND   WIFE. 

husband,  equity  follows  the  money  into  the  husband's  hands, 
and  makes  him  likewise  accountable  as  his  wife's  trustee.^  It 
impresses  a  trust  upon  the  wife's  separate  estate  wherever 
such  estate  may  be  found.  But  wliile  the  appointment  of 
third  persons  as  trustees  is  not  essential  to  give  the  wife  a 
separate  estate,  or  a  separate  interest  in  any  particular  estate, 
it  is  certainly  desirable  on  many  accounts,  and  there  is  in  it 
this  marked  advantage,  that  the  property  is  made  thereby 
more  secure,  because  such  influence  of  the  husband  over  the 
wife  is  prevented  as  might  induce  her  to  abandon  the  property 
to  him. 2 

Prima  facie,  the  legal  ownership  of  property  Avhich  is  in 
his  wife  at  the  time  of  marriage,  or  comes  to  her  during  cover- 
ture, vests  in  the  husband,  under  his  marital  right.  It  is 
therefore  necessary  that  the  intention  to  establish  a  separate 
use  be  clearly  manifested ;  else  courts  of  equity  will  not 
interpose  against  him.  No  technical  formalities  or  expressions 
are  required  ;  but  the  purpose  must  appear  beyond  the  reach 
of  reasonable  controversy,  in  order  to  entitle  the  wife  to 
claim  the  property  as  her  own  in  derogation  of  the  common 
law.^ 

As  to  the  words  which  in  themselves  indicate  the  inten- 
tion of  creating  a  separate  use,  there  have  been  numerous 
decisions.  Among  them  the  following  expressions  are  held 
sufficient.  "  For  her  full  and  sole  use  and  benefit."  *  "  For 
her  own  sole  use  and  benefit."^  "For  her  sole  use."  ^ 
"  For  her  sole  and  separate  use  and  benefit."  '     "  For 

*  190    her  sole  and  separate  use."^     "  For  her  *  sole  use  and 

benefit."  ^     "  For  her  own  sole  use,  benefit,  and  dis- 

1  Rich  V.  Cockle,  9  Ves.  375.     See  also  Izod  v.  Lamb,  1  Cr.  &  J.  35. 

'^  Newland  v.  Paynter,  10  Sim.  377  ;  s.  c.  on  appeal,  4  M.  &  Cr.  408;  Hum- 
phreys. Richards,  25  L.  J.  Eq.  444  ;  s.  c.  2  Jur.  433  ;  Peachey  Mar.  Settl.  260  ; 
Macq.  Hus.  &  Wife,  291.     See  Wall  v.  Rogers,  L.  R.  9  Eq.  58. 

3  Macq.  Hus.  &  Wife,  307 ;  Tyler  v.  Lake,  2  Russ.  &  M.  183  ;  Kensington  v. 
Dollond,  2  M.  &  K.  184  ;  Moore  v.  Morris,  4  Drew,  37  ;  Peachey  Mar.  Settl.  279. 

*  Arthur  v.  Arthur,  11  Ir.  Eq.  511. 

5  Ex  parte  Killick,  3  Mon.  D.  &  De  G.  480. 

6  Lindsell  v.  Thacker,  12  Sim.  178. 
■J  Archer  v.  Rorke,  7  Ir.  Eq.  478. 

8  Parker  v.  Brooke,  9  Ves.  583;  Adamson  v.  Armitage,  19  Ves.  415. 

9  V.  Lyne,  Younge,  562. 

[200] 


WIFE'S  SEPARATE  ESTATE  ;  ENGLISH  DOCTRINE.      *  190 

position."!  "For  her  sole  and  absolute  use."^  "For  her 
own  use,  and  at  her  own  disposal."  ^  "  To  be  at  her  disposal, 
and  to  do  therewith  as  she  shall  think  fit."  *  "  Solel}'-  and 
entirely  for  her  own  use  and  benefit."  ^  "  For  her  own 
use,  independent  of  any  husband."  ^  "  Not  subjected  to  the 
control  of  her  husband."  ">  "  For  her  own  use  and  benefit, 
independent  of  any  other  person."  ^  "  For  her  liveli- 
hood." 9 

So,  too,  the  intention  of  excluding  the  husband's  marital 
rights,  may  be  inferred  from  the  nature  of  the  provisions  at- 
tached to  the  gift,  as  where,  for  example,  the  direction  is  that 
the  property  shall  be  at  the  wife's  disposal,  or  there  is  some 
other  clear  indication  that  such  was  the  donor's  intention. ^^^ 
Lord  Thurlow  once  decided  that  a  direction  "  that  the  inter- 
est and  profits  be  paid  to  her,  and  the  principal  to  her  or  to 
her  order  by  note,  or  writing  under  her  hand,"  created  a  trust 
for  the  wife's  separate  use.^^  So  in  the  judgment  of  Sir 
William  Fortescue,  Master  of  the  Rolls,  did  the  words  "  that 
she  should  enjoy  and  receive  the  issues  and  profits  of  the 
estate."  ^^  And  Lord  Loughborough  gave  a  like  effect  to  a 
direction  that  certain  property  should  be  delivered  up  to 
a  married  woman,  "  whenever  she  should  demand  or  require 
the  same."  ^^  A  similar  construction  has  also  been  ap- 
plied to  the  words,  "  to  be  *laid  out  in  what  she  (the  *  191 
wife)  shall  think  fit."  ^^  And  a  legacy  to  a  married 
woman,  "  her  receipt  to  be  a  sufiicient  discharge  to  the  ex- 
ecutors," has  been  held  sufficient.!^     A  legacy  added  by  a 

1  Ex  parte  Ray,  1  Madd.  199.  2  Davis  v.  Prout,  7  Beav.  288. 

3  Prichard  v.  Ames,  Turn.  &  Russ.  222. 

4  Kirk  V.  Paulin,  9  Vin.  Abr.  96,  pi.  43. 

5  Inglefield  v.  Coghlan,  2  Coll.  247.  e  Wagstaff  y.  Smith,  9  Ves.  520. 

■J  Bain  v.  Lesclier,  11  Sim.  397.  8  Margetts  v.  Barringer,  7  Sim.  482. 

9  Darley  v.  Darley,  3  Atk.  399.     And  see  Peachey  Mar.  Settl.  279,  280; 
Macq.  Hus.  &  Wife,  308,  309. 
i«  Prichard  v.  Ames,  Turn.  &  Russ.  223;  Peachey  Mar.  Settl.  279. 

11  Hulme  V.  Tenant.  1  Bro.  C.  C.  16. 

12  Tyrrell  v.  Hope,  2  Atk.  561.     "  For  to  what  end  should  she  receive  it," 
says  this  judge,  "  if  it  is  the  property  of  the  husband  the  next  moment  ?  " 

l-*  Dixon  V.  Ohnius,  2  Cox,  414. 

n  Atcherlcy  v.  Vernon,  10  Mod.  518.     See  Blacklow  v.  Laws,  2  Hare,  52. 

15  Warwick  v.  Hawkins,  13  E.  L.  &  Eq.  174. 

[201] 


*191  HUSBAND   AND  WIFE. 

codicil  to  the  legacy  given  by  a  will  is  subject  to  the  incidents 
of  the  original  legacy  ;  and  the  separate  use  may  be  extended 
by  construction  from  the  will  to  the  codicil.^ 

Yet,  on  the  other  hand,  the  form  of  expression  will  go  far 
towards  determining  whether  property  is  or  is  not  limited  to 
the  -udfe's  separate  use.  Vice-Chancellor  Wigrara,  in  a  case 
before  him  not  many  years  ago,  was  forced  to  admit  that 
while  ruling  out  certain  property,  from  the  wife's  separate 
use,  on  account  of  the  testator's  insufficient  language,  he  had 
a  strong  opinion  that  he  decided  against  the  real  intention  of 
the  testator.2  It  is  to  be  observed,  then,  that  courts  of  equity 
will  not  deprive  the  husband  of  his  rights  at  law,  unless  the 
words  of  themselves  leave  no  doubt  of  the  intention  to  ex- 
clude him.^  A  mere  trust  therefore  to  pay  the  income  of  a 
fund  to  a  married  woman,  and  her  assigns,  is  not  sufficient  to 
prevent  the  marital  rights  from  attaching.*  Even  a  gift  to  a 
wife  "  for  her  use,"  has  been  held  not  a  sufficiently  unequiv- 
ocal declaration  of  an  intention  to  create  a  trust  for  the  sep- 
arate use  of  the  wife.^  Some  words  have  greater  efficacy 
than  others.  Thus  it  has  been  said  that  the  word  "  enjoy  " 
is  very  strong  to  imply  a  separate  use.^  And  much  contro- 
versy has  arisen  in  the  English  chancery  courts  over  the  use 
of  the  word  "  own  "  as  synonymous  with  "  sole,"  the 
*  192  result  of  which  is  to  establish  that  *  there  is  a  substan- 
tial distinction  between  a  gift  to  a  wife,  "  for  her  sole 
use,"  and  a  gift  "  for  her  own  use,"  or  "  for  her  own  use  and 
benefit." '  And  it  having  been  decided  that  the  word  ^  own  " 
had  no  exclusive  meaning,  it  was  next  determined  that  a 
trust  to  pay  the  proceeds  of  real  estate  into  the  proper  hands 
of  a  married  woman  for  her  own  use  and  benefit  was  not  a 
gift  to  the  wife's  separate  use,  the  word  "  proper  "  being  the 

1  Day  V.  Croft,  4  Beav.  561.  2  Blaeklow  v.  Laws,  2  Hare,  49. 

'  Peachey  Mar.   Settl.  281 ;  Tyler  v.  Lake,  2  Russ.  &  M.  188 ;  Massey  v. 
Parker,  2  m".  &  K.  181  ;  Macq.  Hus.  &  Wife,  309. 
*  Lumb  V.  Milnes,  oVes.  517. 

5  Jacobs  V.  Amyatt,  1  Madd.  376,  n. ;  Wills  v.  Sayers,  4  :Madd.  411 ;  Roberts 
V.  Spicer,  5  Madd.  491. 

6  Sir  Wm.  Fortescue,  in  Tyrrell  v.  Hope,  2  Atk.  558. 

T  See  Lord  Brougliatn's   judgment  in  Tyler   v.  Lake,   2  Russ.  &  M.  187  ; 
Johnes  v.  Lockhart,  3  Bro.  C.  C.  383,  n. ;  Peachey  Mar.  Settl.  282. 

[202] 


WIFE'S  SEPARATE  ESTATE;  ENGLISH  DOCTRINE.      *  192 

Latin  form  of  the  word  "  own,"  and  therefore  payment  into 
the  wife's  proper  hands,  signifying  the  same  thing,  as  into 
her  own  hands. ^  Lord  Brongham  thus  in  effect  overruled  a 
decision  of  Lord  Alvanley,  who  had  held  that  the  use  of  the 
•word  "  proper "  would  create  a  separate  use.^  This  later 
construction,  coming  from  a  jurisdiction  so  conclusive,  has 
since  prevailed,  though  not  without  some  expressions  of  dis- 
satisfaction in  the  lower  courts.^  And  again,  language  of  the 
donor,  expressive  of  his  intent  to  limit  property  to  the  wife's 
separate  use,  may  be  controlled  by  other  words  or  provisions 
so  as  to  negative  such  a  supposition.  This  principle  was  ap- 
plied to  the  wife's  disadvantage,  in  a  case  where  others  were 
made  the  objects  of  the  bounty  with  her.^  Yet  it  has  been 
held  that  a  gift  to  the  wife's  separate  use  was  good,  although 
the  support  and  education  of  children  was  annexed  as  a  charge 
upon  it.^  The  expression  "  her  intended  husband "  may 
apply  to  a  second  husband,  where  there  are  words  limiting 
income  to  the  wife's  separate  use  during  her  life,  for  this 
latter  expression  controls  the  former.^ 

Whether  the  word  "  sole  "is  of  itself  sufficient  to  create 
a  separate  use  is  doubtful.  Different  opinions  have  been 
expressed  on  this  point.  But  in  a  recent  case  before  Vice- 
Chancellor  Kindersley,  the  word  "  sole  "  was  deemed  insuf- 
ficient, in  a  devise  of  property  to  a  female,  her  heirs, 
executors,  administrators,  *  and  assigns,  "  for  her  and  *  193 
their  own  sole  and  absolute  use  and  benefit,"  to  create 
a  separate  estate ;  since  the  word  "  sole,"  as  here  used,  had 
reference  not  only  to  the  female  herself,  but  to  her  heirs, 
executors,  administrators,  and  assigns,  who  certainly  could 
not  be  considered  beneficiaries  under  any  such  trust." 

1  Tyler  v.  Lake,  2  Russ.  &  M.  187. 

2  Hartley  v.  Hurle,  5  Ves.  545. 

'  See  Vice-Cliancellor  Wirrram,  in  Blacklow  v.  Laws,  2  Hare,  49;  Macq 
Hus.  &  Wife,  BO'.i ;  Peacliey  Mar.  Settl.  282. 

*  Warelle  v.  Claxton,  9  Sim.  524.  And  see  Gilchrist  v.  Cator,  1  I)e  G.  &  S. 
188. 

5  Cape  V.  Cape,  2  You.  &  Coll.  Exch.  543.  And  see  n.  to  Macq.  Hus  & 
Wife,  310. 

6  Hawkes  v.  Hubback,  L.  R.  11  Eq.  5. 

'  Lewis  V.  Mathews,  L.  R.  2  Eq.  177.     And  see  Troutbeck  v.  Boughey,  L.  R. 

[203] 


*  193  HUSBAND   AND   WIFE. 

A  gift  of  the  produce  of  a  fund,  is  to  be  considered  a  gift 
of  that  produce  in  perpetuity  ;  hence,  it  is  a  gift  of  the  fund 
itself,  nothing  appearing  to  show  a  different  intention.  There- 
fore a  bequest  of  a  fund  to  a  woman,  with  the  interest  thereon, 
to  be  vested  in  trustees,  —  the  income  arising  therefrom  to  be 
for  her  separate  use  and  benefit,  —  vests  the  capital  for  her 
separate  use.^  Where  a  testator  simply  directs  the  invest- 
ment of  a  fund  in  trustees,  for  the  benefit  of  a  married  woman, 
independent  of  the  control  of  her  husband,  this  is  enough  to 
carry  the  whole  fund  to  her  separate  use.^  So  it  is  held  that 
where  stock  was  given  to  trustees  upon  trust,  to  pay  the 
dividends  to  a  married  woman  for  her  separate  use,  and  there 
was  no  limitation  of  a  life-interest,  an  absolute  interest  in  the 
capital  passed  to  her,  which  she  could  dispose  of  as  a  feine 
sole.^ 

As  a  wife  is  only  made  a  party  to  a  suit  instituted  by  her 
husband  on  the  alleged  ground  of  her  having  separate  estate 
in  regard  to  which  she  is  a,  feme  sole,  the  husband,  by  making 
her  a  party,  admits  it  to  be  her  separate  estate.* 

It  is  fair  to  suppose  that  in  equity  the  wife's  separate  use 
binds  the  produce  of  the  fund,  as  well  as  the  fund  itself. 
There  are  some  cases  decided  in  the  courts  of  common  law, 
where  the  contrary  has  been  maintained,  and  to  this  effect, 
that,  although  a  wife  may  be  entitled  to  separate  property, 
the  dividends  arising  therefrom  vest  in  her  husband.^  This 
is  no  reason,  however,  why  the  equity  doctrine  should  not  be 
as  we  have  stated  ;  indeed,  if  it  were  otherwise,  as  an 

*  19-4    English  writer  *  has  observed,  the  object  of  separate 

use  would  be  in  many  instances  frustrated.^ 

2  Eq.  534.  See  also,  as  to  property  to  husband  and  another  in  trust,  Ex  parte 
Beilby,  1  Glyn  &  Jam.  167  ;  n.  to  Peachey  Mar.  Settl.  283. 

1  Adamson  v.  Armitage,  19  Ves.  416;  Macq.  Hus.  &  Wife,  311 ;  Troutbeck 
V.  Boughey,  L.  R.  2  Eq.  534. 

'■*  Simons  v.  Howard,  1  Keen,  7,  per  Lord  Langdale. 

3  Elton  V.  Shephard,  1  Bro.  C.  C.  582  ;  Haig  v.  Swiney,  1  Sim.  &  Stu.  487. 

4  Earl  V.  Ferris,  19  Beav.  69. 

*  Tugman  v.  Hopkins,  4  Man.  &  Gr.  389 ;  Came  v.  Brice,  7  M.  &  W.  183. 

6  See  Macq.  Hus.  &  Wife,  291,  and  n.  And  see  dictum  of  Sir  Lancelot 
Shadwell,  in  Molony  v.  Kennedy,  10  Sira.  254  (quoted  ib.),  whicli  intimates  that 
this  is  the  equity  doctrine ;  per  Lord  Hardwicke,  Churchill  v.  Dibbin,  9  Sim. 

[204] 


"WITE'S  SEPARATE  ESTATE;  ENGLISH  DOCTRINE.      *  194 

The  quality  of  separate  estate  ceases  on  the  death  of  the 
wife  ;  and  if  her  husband  survives  her,  he  becomes  entitled 
to  the  property  as  though  it  had  never  been  settled  to  her 
separate  use.  For  the  separate  use  was  created  only  for  the 
marriage  state,  and  was  not  designed  to  extend  beyond  the 
dissolution  of  marriage,  or  when  the  necessity  of  the  trust 
should  be  no  longer  felt.  Thus  choses  in  possession  settled  to 
the  wife's  separate  use  vest  in  the  husband  absolutely  upon 
his  survivorship.^  The  wife's  separate  choses  in  action  may 
be  recovered  by  him  in  his  right,  as  her  administrator.^  So, 
doubtless,  her  separate  chattels  real  go  to  the  husband  as 
survivor.  In  short,  the  wife's  separate  property  upon  the 
wife's  death  is  freed  from  its  peculiar  incidents,  and  becomes 
like  any  other  estate  of  hers,  which  may  remain  at  her 
decease.^  And  it  seems  clear  that  the  husband  may  be  tenant 
by  the  curtes}^  as  usual,  if  not  expressly  excluded  from  all 
marital  interest.* 

Yet  the  wife  may  defeat  her  husband's  claim  after  her 
death  by  exercising  her  power  of  disposition  during  her  life- 
time ;  a  power  which  is  recognized  in  a  married  woman  so  far 
as  her  separate  property  is  concerned.^  So  too  by  the  terms 
of  the  trust  the  husband's  rights  may  be  prevented  from 
attaching.  Thus,  where  a  wife  entitled  to  separate  property 
for  life,  under  a  settlement  which  directed  that  all  the 
trust  property  and  all  tl:^  *  income  thereof  "  remain-  *  195 
ing  unapplied  "  at  her  death  should  go  in  a  certain 
manner,  left  her  husband  some  years  before  her  death  ;  and 
the  trustees  received  the  income  regularly  and  paid  it  into  a 
bank  in  their  own  names,  with  her  privity,  making  remit- 
tances to  her  as  she  required  money  ;  and  upon  the  wife's 

447,  n.     Contra,  Peachey  Mar.  Settl.  263,  where  cases  are  cited  which  do  not 
support  the  statement  in  the  text. 

1  Molony  v.  Kennedy,  10  Sim.  254. 

2  Proudley  v.  Fielder,  2  Myl.  &  K.  67 ;  Drury  v.  Scott,  4  You.  &  Coll.  Ch. 
264  ;  Stead  v.  Clay,  1  Sim.  294. 

8  ilacq.  Hus.  &  Wife,  285  ;  Peachey  Mar.  Settl.  278 ;  Sloper  v.  Cottrell,  6  El. 
&  Bl.  501  ;  Bird  v.  Pegrura,  13  C.  B.  650  ;  s.  c.  17  Jur.  579. 

*  Lushington  v.  Sewell,  1  Sim.  548  ;  Roberts  v.  Dixwell,  1  Atk.  606,  per  Lord 
Hardwicke  ;  Macq.  Hus.  &  Wife,  287;  Appleton  v.  Rowley,  L.  R.  8  Eq.  139. 
But  see  Moore  v.  Webster,  L.  R.  8  Eq.  267. 

»  Macq.  Hus.  &  Wife,  285. 

[  205  ] 


*  195  HUSBAND  AND  WIFE. 

death  the  sum  of  £888  was  found  among  her  effects,  and  a 
balance  of  £2,049  accumulated  income  stood  to  the  credit  of 
the  trustees  in  the  bank  ;  it  was  held  by  the  Vice-Chancellor 
of  England  that  the  former  went  to  the  surviving  husband 
by  virtue  of  his  marital  right,  while  the  latter  was  bound  by 
the  trusts  of  the  deed  as  the  result  of  income  "  remaining 
unapplied  "  at  her  death. ^ 

Since  the  separate  use  can  exist  only  in  the  married  state, 
it  may  sometimes  have  an  ambulatory  operation ;  so  as  to  be 
effectual  according  as  the  woman  happens  at  the  time  to  be 
covert  or  sole.  Supposing,  then,  a  gift  be  made  to  the  sepa- 
rate use  of  a  woman  who  is  single  at  the  time  the  gift  takes 
effect ;  it  is  clear  that  she  shall  enjoy  the  gift  absolutely  and 
without  restraint.  But  if  she  afterwards  marries  will  the 
separate  use  operate  ?  It  will,  unless  by  the  terms  of  her 
marriage  settlement  she  expressly  renounces  it.^  Supposing, 
however,  she  outlives  her  husband,  the  separate  use  ceases 
as  in  other  cases  ;  since  it  can  only  be  effectual  during  cover- 
ture. But  if  she  marries  again,  the  separate  use  revives  once 
more  ;  and  so  onward,  from  time  to  time,  ceasing  and  re- 
viving alternately,  upon  each  alteration  of  her  personal 
condition.^ 

A  single  woman,  having  a  gift  expressed  to  be  to  her  sep- 
arate use,  may  renounce  such  separate  use  upon  her  marriage. 
This  will  be  readily  admitted.     Yet  the  courts  con- 

*  196    strue  an   act  of  this  *  sort  strictly.*      The   evidence 

must  be  clear  in  all  cases,  that  a  single  woman  marry- 
ing has  renounced  her  separate  use  ;  for  it  will  not  be  pre- 
sumed that  she  means,  by  the  mere  fact  of  matrimony,  to 

1  Johnstone  v.  Lunib,  15  Sim.  308.  As  to  the  wife's  rights  over  money  not 
the  savings  of  her  separate  estate,  see  Barrack  v.  McCulIoch,  3  Kay  &  Johns. 
114;  Brooke  w.  Brooke,  4  Jur.  n.  s.  472;  Peachey  Mar.  Settl.  262.  But  see 
Messenger  v.  Clarke,  6  Exch.  888,  for  the  doctrine  at  law. 

2  Tullett  V.  Armstrong,  1  Beav.  1  ;  Anderson  v.  Anderson,  2  Myl.  &  K.  427  ; 
Macq.  Hus.  &  Wife,  306. 

3  Macq.  Hus.  &  Wife,  806  ;  Tullett  v.  Armstrong,  1  Beav.  1,  affirmed  by  Lord 
Cottenham,  4  Myl.  &  Cr.  377 ;  Hawkes  v.  Hubback,  L.  R.  11  Eq.  5. 

*  Johnson  i;.  Johnson,  1  Keen,  648 ;  Macq.  Hus.  &  Wife,  306.  See  Marriage 
Settlements  of  Infants,  post. 

[206] 


WIFE'S  SEPARATE  ESTATE;   ENGLISH  DOCTRINE.     *  196 

relinquish  her  control  of  the  property.  But  antenuptial 
settlements  may  be  made  on  reasonable  terms  by  the  parties 
contemplating  marriage.  And  there  is  nothing  to  prevent 
the  operation  of  a  trust  for  separate  use  from  being  confined 
to  a  particular  coverture,  where  all  concerned  are  so  minded. 
In  such  cases,  however,  the  wife  marrying  again  can  always 
stipulate  for  her  separate  use.^ 

It  would  appear  to  be  the  English  doctrine  that  the  marital 
obligations  of  the  husband  are  not  essentially  altered  b}^  her 
right  to  separate  property.  Thus,  it  is  held  that  the  wife  is 
not  bound  to  maintain  her  husband  out  of  her  separate  for- 
tune, nor  to  bring  any  part  of  it  into  contribution  for  family 
purposes.^  And  there  seems  to  be  no  legal  authority  to  sup- 
port the  notion  that  the  husband's  liabilities  on  her  general 
debts  are  thereby  altered  during  their  joint  lives.^  But  it  is 
held  that  the  separate  estate  of  a  married  woman  is  after  her 
death  a  trust  for  the  payment  of  her  debts."^  The  common- 
law  liabilities  of  the  husband,  to  be  sure,  rest  in  great  meas- 
ure upon  his  right  to  his  wife's  property  ;  yet  we  may  admit 
that  it  would  be  difficult  to  adjust  any  new  rule  except  upon 
partnership  principles.  If  one  marries  a  rich  wife,  therefore, 
who  chooses  to  hoard  her  savings  by  herself,  bequeath  all  to 
others,  and  compel  him,  a  poor  man,  to  pay  for  every  thing 
she  or  the  children  need,  all  their  lives,  and  her  general 
debts  besides,  it  is  possible  that  even  equity  will  deny  him 
relief.  By  a  recent  statute  the  wife's  separate  property  is 
expressly  made  liable  for  her  antenuptial  debts.^ 

*  Moreover  the  wife  is  not  bound  to  maintain,  edu-    *  197 
cate,  or  provide  for  her  children  out  of  her  separate 
property ;    and  even  though  she  elope   from  her  husband, 
equity  will  not  lay  hold  of  her  estate  for  that  purpose.     This 
is  a  settled   point  in   England,  unless  the  legislature  shall 

Macq.  Hus.  &  W  e,  307.     See  Knight  v.  Knight,  6  Sim.  121;  Bradley  v. 
Hughes,  8  Sim.  149 ;  Benson  v.  Benson,  6  Sim.  126. 
'^  Lamb  v.  Mihies,  5  Ves.  520. 
»  See  Macq.  Hus.  &  Wife,  288.     But  see  infra,  pp.  225,  226. 

*  2  Story  Eq.  Jur.  §  1398,  h.  ;  Norton  v.  Turrill,  2  P.  Wms.  144.  But  see  In 
re  Baker's  Trusts,  L.  R.  13  Eq.  168. 

*  Sanger  v.  Sanger,  L.  K.  11  Eq.  470. 

[207] 


*197  HUSBAND   AND    WIFE. 

change  the  law  hereafter  ;  for  the  House  of  Lords  so  decided 
in  Hodgden  v.  Hodgden^  on  appeal  from  the  lower  court  of 
chancery,  and  under  the  advice  of  Lord-Chancellor  Cotten- 
ham.^  And  yet  whenever  a  settlement  of  the  wife's  equity 
is  decreed,  where  the  husband  or  his  legal  representative 
seeks  to  recover  for  himself  her  choses  in  action^  the  children 
of  the  marriage  are  included  within  its  benefits ;  though,  to 
be  sure,  the  wife  may  waive  the  claim  altogether  without 
reference  to  them.^ 

It  is  possible  that  a  provision  for  the  wife's  separate  use 
may  fail,  as  against  thu'd  parties  purchasers,  wherever  the 
husband  can  dispose  of  the  property  without  their  having 
notice  of  the  trust.^ 

The  clause  of  restraint  upon  anticipation  is  an  important 
element  in  the  doctrine  of  the  wife's  separate  use,  as  admin- 
istered in  England.  This  clause  was  sanctioned  by  Lord 
Thurlow  ;  '^  is  frequently  to  be  met  with  in  modern  convey- 
ances ;  and  is  pronounced  by  Mr.  Macqueen,  and  such  as  he 
chooses  to  denominate  "  the  wise,"  a  salutary  clause  which 
takes  from  the  wife  the  power  of  bringing  ruin  upon  herself ; 
though  it  is  manifestl}''  in  form  a  fetter  upon  the  trust  estate, 
while  the  wisdom  of  its  establishment  in  any  case  depends 
upon  the  folly  of  the  beneficiary .°  With  a  perfect  liberty  of 
disposal,  the  danger  arose  that  the  wife  might  be  persuaded 

to  part  with,  or  charge  her  separate  property,  even 
*  198    against  her  better  judgment,  through  *  the  secret  and 

subtle  influences  which  her  husband  might  bring  to 
bear  u^jon  her.  But  by  the  clause  against  anticipation,  the 
wife's  hands  are  tied  up  ;  she  has  not  the  power  of  alienating 
or  encumbering  the  property  ;  and  the  donor  can  place  his 
gift  beyond  the  possibility  of  matrimonial  contention.  The 
restraint  upon  anticipation  extends  even  to  landed  property, 

1  4  Cl.  &  Fin.  323,  reversing  tiie  decree  of  the  court  below. 

2  See  supra,  ch.  5,  tlie  wife's  equity  to  a  settlement. 

3  Parker  v.  Brooke,  9  Ves.  583 ;  Macq.  Hus.  &  Wife,  291. 

*  Miss  Watson's  Case.  See  Pybus  v.  Smith,  3  Bro.  C.  C.  340,  n.  This  doc- 
trine was  afterwards  affirmed  in  Jackson  v.  Hobhouse,  2  Mer.  487,  by  Lord 
Eidon. 

5  See  Macq.  Hus.  &  Wife,  312. 

[208] 


WIFE'S  SEPAEATE  ESTATE  ;   ENGLISH  DOCTRINE.     *  198 

notwithstanding  the  common-law  methods  by  which  the  wife 
may  ordinarily  alienate  and  encumber  such  estate  ;  so  that  a 
person  may  now  devise  lands  to  a  married  woman  in  fee-sim- 
ple in  such  a  manner  as  to  disable  her  during  coverture  from 
making  any  sale,  mortgage,  charge,  or  encumbrance  whatever 
to  take  effect  against  it.^ 

The  name  of  this  important  clause  originates  in  the  circum- 
stances under  which  it  was  first  applied.^  The  general  pur- 
port of  this  expression  is  that  the  wife  shall  be  prohibited  the 
anticipation  of  the  income  of  her  separate  property  or  the  an- 
ticipation of  the  capital  of  the  fund.  Yet  the  word  "  antici- 
pation "  need  not  be  used  in  clauses  of  this  sort,  nor  is  any 
particular  form  of  expression  necessary.^ 

Like  the  separate  use  itself,  this  clause  of  restraint  on  antici- 
pation exists  only  in  the  marriage  state ;  and  property  vested 
in  a  single  woman  she  may  dispose  of  absolutely,  despite  such 
limitation,  so  long  as  she  remains  unmarried  ;  but  upon  her 
coverture,  while  retaining  such  property,  the  separate  use 
and  the  restraint  upon  anticipation  attach  and  become 
effective  *  together,  cease  together  upon  her  widow-  *  199 
hood,  and  revive  together  upon  her  remarriage.* 

But  the  restraint  on  anticipation  does  not  exempt  a  mar- 
ried woman  from  the  ordinarj'  consequences  of  lapse  of  time 
and  acquiescence.  That  fetter  upon  alienation  was  imi)osed 
for  her  protection  against  her  husband,  but  was  not  intended 
to  exonerate  her  from  the  obligation  of  asserting  her  claim 


1  Bagget  V.  Meux,  1  Pliil.  627,  per  Lord  Lyndhurst  ;  1  Coll.  138  ;  Macq.  Hus. 
&  Wife,  312  ;  Peacliey  Mar.  Settl.  284.  Nor  can  she  join  her  husband  in  a 
power  of  attorney  to  receive  or  sue  for  moneys  tied  up  by  this  clause.  Kenrick 
V.  Wood,  L.  R.  9  Eq.  333. 

2  See  Pybus  v.  Smith,  3  Bro.  C.  C.  340 ;  Jodrell  v.  Jodrell,  9  Bcav.  59. 

3  Per  Lord  Cranworth,. /n  re  Ross's  Trust,  1  Sim.  199;  Doolan  v.  Blake,  3 
Ir.  Ch.  349  ;  Peacliey  Mar.  Settl.  287.  See  further,  Moore  u.  Moore,  1  Coll.  57  ; 
TuUett  V.  Armstrong,  1  Beav.  1  ;  Macq.  Hus.  &  Wife,  314,  n. ;  Steedman  v. 
Poole,  6  Hare,  193;  Parkes  v.  White,  11  Ves.  222;  Clark  v.  Pister,  3  Bro.  C.  C. 
346,  cited  in  Pybus  v.  Smith  ;  Barrymore  i'.  Ellis,  8  Sim.  1  ;  Brown  v.  Bamford, 
1  Phil.  620;  Field  v.  Evans,  15  Sim.  375;  Baker  v.  Bradley,  2  Jur.  n.  s.  104; 
Peachey  Mar.  vSettl.  287,  288,  and  cases  cited  ;  Harrop  i'.  Howard,  3  Hare,  624; 
Harnett  v.  M'Dougall,  8  Beav.  187  ;  Acton  i\  Wliite,  1  Sim.  &  Stu.  429. 

*  TuUett  V.  Armstrong,  1  Beav.  1;  4  Myl.  &  Cr.  377;  Macq.  Hus.  &  Wife, 
313 ;  Clarke  v.  Jaques,  1  Beav.  36 ;  Dixon  v.  Dixon,  1  Beav.  40. 

14  [  209  ] 


*  199  HUSBAND  AND  WIFE. 

■within  a  reasonable  period.  Indeed,  it  is  but  reasonable  that, 
as  a  court  of  equity  creates  and  models  the  separate  estate, 
the  estate  so  created  and  modelled  should  be  subject  to  the 
ordinary  rules  of  the  court.^  But  the  court  cannot  mould  at 
will  the  fetter  imposed  upon  alienation,  though  the  language 
used  by  some  of  the  earlier  judges  would  seem  to  indicate 
otherwise  ;  moreover,  while  the  power  to  impose  restraint  on 
anticipation  is  a  mere  creature  of  the  court,  the  restraint 
itself  is  always  imposed  by  the  author,  the  settlor  of  the  gift.^ 

Although  the  wife's  separate  use  is  the  creature  of  equity, 
and  specially  consigned  to  its  watchful  keeping,  courts  of  law 
will  sometimes  afford  it  protection.  This  seems  to  be,  how- 
ever, only  in  cases  where  a  trustee  is  interposed  to  hold  the 
legal  estate  ;  for,  since  the  common-law  courts  maintain  their 
own  maxims,  there  should  be  some  person  designated  to  hold 
the  fund  for  the  wife  ;  and  such  person  Mall  be  considered  as 
the  legal  owner  so  as  to  save  the  property  from  attachment 
and  sale  for  the  husband's  debts. ^  Under  a  recent  act  of 
1870,  it  is  made  the  duty  of  a  company  to  register  stock  in 
the  name  of  a  married  woman  entitled  to  her  separate  use  ; 
and  this  duty  is  enforceable  by  mandamus.* 

1  Derbishire  v.  Home,  3  De  G.,  M.  &  G.  113. 

'  Robinson  v.  Wheelwrigbt,  21  Beav.  220;  s.  c.  on  appeal,  6  De  G.,  M.  &  G. 
535  ;  2  Jur.  n.  s.  554.  See  Peacbey  Mar.  Settl.  289  ;  Fitzgibbon  v.  Blake,  8  Ir. 
Ch.  328.  Income  wbicb  a  wife  is  restrained  from  anticipating  will  not  be  ap- 
plied to  make  good  tbe  consequences  of  ber  fraud.  Arnolds  v.  Woodhams,  L.  R. 
16  Eq.  29. 

*  See  Izod  v.  Lamb,  1  Cr.  &  J.  35  ;  Davison  v.  Atkinson,  5  T.  R.  434 ;  Dean 
V.  Brown,  2  Car.  &  P.  62 ;  Macq.  Hus.  &  Wife,  291. 

4  Queen  v.  Carnatic  R.  R.  Co.,  L.  R.  8  Q.  B.  299;  Act  33  &  34  Vict.  c.  93. 

[210] 


WIFE'S  SEPARATE  ESTATE;  AMERICAN  DOCTRINE.     ♦  200 


*  CHAPTER   XL  *  200 

THE    wife's    separate   ESTATE  ;    AMERICAN    DOCTRINE. 

The  doctrine  of  the  wife's  separate  estate  is  one  of  peculiar 
growth  and  development  in  this  country,  though  doubtless 
originating  in  the  maxims  of  the  English  chancery,  and 
deriving  much  of  its  strength  from  the  splendid  accomplish- 
ments of  Langdale,  Thurlow,  and  Eldon,  in  their  own  land. 
What  such  men  and  their  successors  effected  by  judicial  pol- 
icy, we  have  carried  into  our  statutes  ;  nay,  we  have  gone 
further.  In  England,  the  equitable  rights  of  married  women 
are  the  triumph  of  the  bench  ;  with  us  the  early  efforts  of  the 
bench  have  been  eclipsed  by  the  later  achievements  of  the 
legislature,  and  the  judge  follows  the  law-giver  to  restrain 
rather  than  enlarge. 

When  this  country  was  first  settled,  the  separate  use  was 
but  little  understood  in  England.  Its  development  there  was 
gradual,  and  its  final  establishment  of  a  later  date.  Our 
ancestors  brought  over  the  common  law  with  them  ;  but  for 
equity  they  had  little  respect.  True,  it  cannot  be  said  that 
by  the  jurisprudence  of  a  single  State,  property  bestowed 
upon  a  married  woman  to  her  separate  use,  free  from  the  con- 
trol and  interference  of  her  husl)and,  would  remain  subject, 
notwithstanding,  to  his  marital  dominion ;  but  prior  to  the 
late  married  women's  acts  there  Avere,  in  many  States,  no 
judicial  precedents  to  combat  such  an  assumption.  That  such 
trusts  might  be  created  was  not  denied ;  but  whetlier  there 
were  courts  with  authority  to  enforce  them  appeared 
frequently  doubtful. ^     *  In  the  New-England  States,    *  201 

'  It  is  true  that  the  general  recognition  here  of  the  wife's  separate  use  has  been 
presumed  by  our  text-writers.  See  2  Kent  Com.  162;  Reeve  Dom.  Kel.  162; 
2  Story  Eq.  Juris.  §  1378  et  seq.  We  confine  our  observation  to  jiulioial  prec- 
edenls.  What  Cliancellor  Kent  has  to  say  on  tlie  American  equity  doctrines 
in  his   work,  must  be  taken  by  the  general  student  with  some  qualifications, 

[211] 


*  201  HUSBAND   AND  WIFE. 

scarcely  a  vestige  of  the  separate  use  was  to  be  found. ^ 
New  York,  Avith  such  eminent  chancellors  as  Kent  and  Wal- 
worth, took  the  lead  in  building  up  an  equity  system  parallel 
with  that  of  England ;  and  in  the  reports  of  this  State  are  to 
be  found  most  of  the  leading  cases  and  the  ablest  discussions 
of  what  may  be  termed  American  chancery  doctrines.  New 
Jersey  recognized  the  separate  use,  and  her  chancery  court 
exercised  liberal  powers.  In  Pennsyvlania,  the  doctrine  was 
recognized  to  some  extent.  The  courts  of  Maryland,  Virginia, 
and  the  Southern  States  generally,  had  frequent  occasion  to 
apply  the  separate-use  doctrine  ;  none  more  so  than  those  of 
North  and  South  Carolina.  And  it  may  be  remarked  that 
the  aristocratic  element  of  society  in  that  section  of  the  coun- 
tr}',  also  a  prevalent  disposition  for  family  entails,  marriage 
settlements,  and  fetters  upon  the  transmission  of  landed  prop- 
erty, aided  much  in  developing  therein  the  English  chancery 
system.  So  was  it  in  Kentucky  and  Tennessee,  States  founded 
upon  like  institutions.  But  as  to  Ohio,  Indiana,  Illinois,  and 
the  other  States  erected  from  what  was  formerly  known  as 
the  North-west  Territory,  society  was  modelled  more  after 
New  England,  and  we  find  no  clear  recognition  of  the  wife's 
equitable  separate  use.  Louisiana,  and  such  contiguous  States 
as  were  originally  governed  by  French  and  Spanish  laws,  had 
more  or  less  of  the  civil  or  community  system  ;  and  to  these 
States  English  equity  maxims  had  at  best  only  a  limited  ap- 
plication. Such,  then,  is  the  wife's  separate  use,  viewed  in 
the  light  of  judicial  precedents,  as  known  in  the  United  States 
up  to  a  quarter  of  a  century  ago.^ 

inasmuch  as  the  learned  writer  draws  largely  upon  his  judicial  opinions,  ren- 
dered in  a  State  which  especially  favored  chancery  jurisprudence.  The  want  of 
a  general  recognition  of  the  wife's  separate  use,  as  unfolded  in  England,  aids  in 
explaining  the  curious  fact  that  our  States  were  legislated  into  a  system  which 
the  English  chancery  had  felt  competent  to  rear  unaided. 

1  But  see  Finney  v.  Fellows,  15  Vt.  52-5  (1843). 

-  See  U.  S.  Eq.  Dig.  Husband  &  Wife,  12  ;  Reade  r.  Livingston,  3  Johns.  Ch 
481 ;  Meth.  Ep.  Church  i'.  Jaques,  1  Johns.  Ch.  65  ;  Rogers  v.  Rogers,  4  Paige, 
516  ;  Vernon  v.  Marsh,  2  Green  Ch.  502  ;  Steel  r.  Steel,  1  Ired.  Eq.  452  ;  Jackson 
V.  McAliley,  Speers  Eq.  303  ;  Boykin  v.  Ciples,  2  Hill  Ch.  200,  204  ;  Hunt  v. 
Booth,  1  Freem.  Ch.  215 ;  Warren  v.  Haley,  1  S.  &  M.  Ch.  647  ;  Hamilton  v. 
Bishop,  8  Yerg.  83;  Griffith  r.  Griffith,  5  B.  Monr.  113;  McKennan  r.  Phillips, 
6  Whart.  571 ;  Gray  v.  Crook,  12  Gill  &  J.  236  ;  Howard  v.  Menifee,  5  Pike,  668. 

[212] 


WIFE'S  SEPARATE  ESTATE  ;  AMERICx\.N  DOCTRINE-    *  202 

*  But  where  recognized  and  enforced  at  all,  the  strict  *  202 
American  rule  was  borrowed  from  that  of  England. 
Thus  it  has  been  frequently  said  that  the  wife's  separate 
estate  requires  no  trustee  to  sustain  it.^  For  when  no  other 
trustee  is  interposed  the  courts  of  chancery  are  prepared  to 
treat  the  husband  as  such.^ 

So,  too,  an  intention  clearly  manifested  to  create  a  separate 
estate  has  always  been  deemed  necessary  in  our  courts,  in 
order  to  exclude  the  husband's  marital  rights.  The  mere 
intervention  of  a  trustee  is  insufficient.^ 

The  language  employed  must  be  suitable.  Thus  in  Xorth 
Carolina,  the  words  "for  her  use  "  have  been  held  sufficient 
to  exclude  the  husband's  dominion.^  So,  too,  the  words  for 
the  "entire  use,  benefit,  profit,  and  advantage."^  But  in 
South  Carolina,  the  words  for  "  the  use  of  his  wife,"  are  held 
insufficient.^  In  Kentucky,  the  words  "  for  her  own  proper 
use  and  benefit,"  are  held  sufficient.^  Such,  too,  seems  to 
have  been  the  rule  in  Alabama.^  The  words  "  to  the  use  and 
benefit,"  are  held  sufficient  in  Tennessee.^  So  in  Alabama, 
words  importing  enjoyment,  "  without  let,  hindrance,  or  mo- 
lestation whatever."  ^^  And  where  one  clause  of  a  will 
applies  the  *  words,  "  in  trust  for  the  separate  use,"  to  *  203 
certain  property,  and  another  applies  to  certain  prop- 

1  McKennan  v.  Phillips,  6  Whart.  571  ;  Thompson  v.  McKusick,  3  Humph. 
631 ;  Fellows  v.  Tann,  9  Ala.  999 ;  Trenton  Banking  Co.  v.  Woodruff;  1  Green 
Ch.  117. 

2  Boykin  v.  Ciples,  2  Hill  Ch.  200 ;  Hamilton  ;•.  Bisiiop,  8  Yerg.  33 ;  Wal- 
lingsford  v.  Allen,  10  Pet.  583;  Porter  v.  Bank  of  Rutland,  19  Vt.  410;  Har- 
kins  V.  Coalter,  2  Port.  463;  Franklin  v.  Creyon,  1  Harp.  Ch.  243;  Freeman  v. 
Freeman,  9  Mis.  763. 

'  Hunt  V.  Booth,  1  Freem.  Ch.  215  ;  Graham  v.  Graham,  Riley,  142  ;  Taylor 
V.  Stone,  13  S.  &  M.  653;  Lenoir  v.  Binney,  15  Ala.  667. 

*  Steel  V.  Steel,  1  Ired.  Eq.  452 ;  Good  v.  Harris,  2  Ired.  Eq.  630. 

*  Heathman  v.  Hall,  3  Ired.  Eq.  414. 

«  Tennant  v.  Stoney,  1  Rich.  Eq.  222 ;  M'Donald  v.  Crockett,  2  McC.  Ch. 
130. 

^  Griffith  V.  Griffith,  5  B.  Monr.  113.  This  is  contrary  to  the  present  Eng- 
lish rule.     See  last  cliapter. 

8  Warren  v.  Halsey,  1  S.  &  M.  Ch.  647. 

9  Hamilton  v.  Bishop,  8  Yerg.  33. 

"•  Newman  v.  James,  12  Ala.  29.     And  see  Clarke  v.  Windham,  ib.  798. 

[  213  ] 


*  203  HUSBAND   AND   WIFE. 

erty  the  words  "  in  trust "  only,  the  separate  use  may  by  con- 
struction embrace  the  whole.^ 

But  the  words  "sole  and  separate  use  "  are  most  commonly 
applied.  A  gift  or  bequest  to  "  a  married  woman  and  her 
children,  born  and  thereafter  to  be  born,"  does  not  invest  her 
with  an  estate  to  her  sole  and  separate  use,  but  makes  her  a 
tenant  in  common  (joint-tenancy  ha\dng  been  abolished),  with 
her  children.^  And  it  would  appear  in  general,  that  where 
property  is  given  for  the  use  and  support  of  two  or  more 
together,  one  of  them  being  a  married  woman,  it  cannot  be 
considered  as  vesting  a  separate  estate  in  the  mamed  woman  ; 
for  exclusiveness  of  enjoyment  is  an  important  element  in 
such  estates.^  This  doctrine  is  not  inconsistent  w^ith  the  well- 
established  right  of  a  donor  to  make  a  trust  first  to  the  wife's 
separate  use,  then  over  to  some  one  else,  provided  the  instru- 
ment uses  apt  language  for  that  purpose.^  And  provisions  for 
the  sole  and  separate  use,  support,  and  maintenance  of  a  wife 
and  children  are  frequently  sustained,  though  the  trust  does 
not  vest  their  respective  interests  consecutively.^  As  in  Eng- 
land, our  courts  permit  an  estate  to  be  so  settled  on  an  un- 
married female  as  to  exclude  the  marital  rights  of  any  future 
husband.^ 

In  Vermont,  it  is  decided  that  a  third  person  may  create  a 
parol  trust  for  a  married  woman's  exclusive  benefit,  except  as 
to  landed  property,  which  falls  within  the  statute  of  frauds. 
Thus  in  a  case  where  it  appeared  that  the  father  of  a  married 
woman  had  intimated  to  her  and  her  husband,  in  conversation, 
that  he  was  about  to  make  her  an  advance  in  money,  which 
he  wished  to  have  invested  for  the  benefit  of  herself  and  her 
children,  and  that  he  had  subsequently  enclosed  in  a 

*  204    letter  to  her  *  husband,  a  check  for  flOOO,  payable  to 

his  daughter,  or  bearer,  expressing  in  the  letter  a  wish 

1  Davis  V.  Cain,  1  Ired.  Eq.  304.       2  Dunn  v.  Bank  of  Mobile,  2  Ala.  152. 

3  Harkins  v.  Coalter,  2  Port.  463  ;  Clancy  Hus.  &  Wife,  269  ;  Inge  v.  Forres- 
ter, 6  Ala.  418. 

*  See  Warren  v.  Haley,  1  S.  &  M.  647. 

•^  Good  V.  Harris,  2  Ired.  Eq.  630 ;  Hamilton  v.  Bishop,  8  Yerg.  88 ;  Ander- 
son V.  Brooks,  11  Ala.  953. 

6  Beaufort  v.  Collier,  6  Humph.  487. 

[214] 


WEFE'S  SEPARATE  ESTATE;   AMERICAN  DOCTRINE.    *  204 

that  the  money  might  be  invested  for  the  mutual  benefit  of 
his  daughter  and  her  heirs,  leaving  the  mode  to  be  determined 
by  her  and  her  husljand,  on  consultation  between  them  ;  also, 
that  she  had  at  the  time  of  the  suit  three  children  ;  the  court 
considered  that  there  had  been  a  trust  created  for  the  exclu- 
sive benefit  of  the  donor's  daughter  and  her  children ;  and 
the  husband  was  taken  to  be  the  trustee,  as  against  his  own 
creditors  who  had  attached  certain  bank  stock  which  he  pur- 
chased in  his  own  name  with  such  funds  ;  the  evidence  show- 
ing that  the  creditors  had  received  notice  that  the  stock  was 
held  in  trust.^ 

Our  courts  of  equity  will  sometimes  overlook  informalities 
in  order  to  give  effect  to  the  wife's  separate  use.  As  where  a 
deed  of  trust  to  a  commissioner  has  been  ordered  by  the  court, 
but  never  executed,  and  the  commissioner  gives  possession  to 
the  husl)and  in  the  mean  time.^  Or  where  a  deed  has  not  been 
recorded  in  comi^liance  with  the  statute.^  So  a  trust  may  be 
enforced,  although  the  details  of  the  arrangement  cannot  be 
ascertained  by  the  most  stringent  proof ;  and  it  would  appear 
that  a  person  may  by  his  acts  make  himself  a  trustee  sub  modo 
to  support  the  wife's  separate  use."*  The  wife  cannot  be  de- 
barred of  her  separate  estate  through  the  fraud  of  others  ;  it 
must  be  a  fraud  to  which  she  is  a  party,  that  will  bar  her  bene- 
ficial title.^  Even  a  purchaser,  still  more  a  volunteer,  taking 
possession  of  the  trust  property,  with  a  notice  of  the  trust, 
will  be  made  a  trustee  in  chancery.^ 

A  married  woman  cannot  by  contract  acquire  any 
property  *  to  her  separate  use  ;  but  the  benefit  of  her    *  205 
contract,  if  any,  enures  to  her  husband."   Where,  how- 
ever, a  married  woman,  with  her  husband's  consent,  purchases 

1  Porter  v.  Bank  of  Rutland,  19  Vt.  410.  Mr.  Macqueen  suggests  the  opin- 
ion that  a  parol  trust  would  be  good  in  England,  tliough  admitting  that  he 
finds  no  decision  of  the  question.  Marriage  settlements,  however,  may  be 
affected  by  the  statute  of  frauds.     Macq.  IIus.  &  Wife,  293. 

2  Jackson  v.  McAlilcy,  Speers  Eq.  303. 
«  Hamilton  v.  Bishop,  8  Yerg.  33. 

♦  Sledge  V.  Clopton,  6  Ala.  589.       5  Jackson  v.  McAliley,  Speers  Eq.  303. 
6  lb.     And  see  Fry  v.  Fry,  7  Paige  Ch.  461. 
'  Lansier  v.  Ross,  1  Dev.  &  Bat.  Eq.  39. 

[215] 


*  205  HUSBAND   AND   WIFE. 

lands  which  she  was  the  meritorious  cause  of  acquiring,  and 
takes  a  deed  to  another,  it  is  hekl  in  Vermont  that  a  trust 
results  in  her  favor.^  On  the  other  hand,  if  a  testator  gives  a 
legacy  to  trustees  for  the  use  of  a  daughter,  and  directs  that 
it  may  be  invested  in  real  estate  for  her  use,  if  she  should 
desire  it,  and  that  the  trustees  should  take  the  title  in  the 
name  of  the  daughter  only,  though  married,  the  trustees  must 
follow  his  directions,  and  they  cannot  take  a  title  in  any  other  • 
name,  though  by  taking  it  in  the  name  of  the  daughter,  the 
property  might  be  subjected  to  the  husband's  debts.^ 

The  Enghsh  doctrine  that  the  wife's  separate  estate  is  not 
necessarily  liable  for  her  own  debts  is  also  admitted  here. 
Thus  it  is  held  in  New  York  that  the  only  ground  on  which 
the  wife's  separate  property  can  be  reached  for  her  antenup- 
tial debts,  is  that  of  appointment ;  that  is,  some  act  of  hers 
after  marriage  which  indicates  an  intention  to  charge  the 
property .3  Nor  can  the  bankruptcy  of  the  husband,  although 
it  suspends  the  legal  remedy  against  the  wife  during  covert- 
ure, afford  any  ground  for  proceeding  in  equity  to  charge  her 
separate  estate.*  Nor  in  the  absence  of  an  intention  on  the 
wife's  part  to  make  such  estate  liable  can  it  be  subjected  to 
her  general  debts  contracted  during  coverture.^  But  in  Mis- 
sissippi a  disposition  has  been  manifested  to  overturn  this  doc- 
trine, and  to  establish  a  new  and  fairer  rule  in  equity,  and 
it  is  held  that  the  wife's  separate  property,  owned 
*  206  before  marriage,  may  be  thus  subjected  to  *the  pay- 
ment of  necessaries  furnished  her  while  sole  and  a 
minor.^ 

1  Pinney  v.  Fellows,  15  Vt.  525.  And  see  Pulliam  v.  Pulliam,  1  Freem.  Ch. 
348. 

2  Vernon  v.  Marsh,  2  Green  Ch.  (N.  J.)  502. 

3  Vanderheyden  v.  Mallory,  1  Conist.  452. 

*  lb.     See  McKay  v.  Allen,  6  Yerg.  44 ;  Pearee  v.  Spierin,  2  Desaus.  460. 

6  Dickson  v.  Miller,  11  S.  &  M.  594 ;  Knox  v.  Picket,  4  Desaus.  92 ;  Gee  v. 
Gee,  2  Dev.  &  Bat.  103 ;  Ilaygood  v.  Harris,  10  'Ala.  291 ;  Curtis  v.  Engel,  2 
Sandf.  Ch.  287. 

6  Dickson  v.  Miller,  11  S.  &  M.  594.  "In  marriage,"  observes  Mr.  Justice 
Thacher,  "although  a  husband  runs  the  hazard  of  becoming  liable  for  his  wife 
in  an  amount  greater  than  the  value  of  the  estate  he  receives  by  her,  he  also  has 
the  chance  of  receiving  by  her  an  amount  far  exceeding  her  debts.     But  where 

C  216  ] 


WIFE'S  SEPARATE  ESTATE;   AMERICAN  DOCTRINE.     *  206 

In  general  the  husband's  obligation  to  maintain  his  wife 
and  family  remains  unaffected  by  the  fact  that  the  wife  holds 
separate  property.  This  rule  is  fully  asserted  in  New  York. 
For  it  is  declared  that,  though  by  a  marriage  settlement  the 
wife's  whole  property  is  secured  to  her  separate  use,  her  hus- 
band is  nevertheless  bound  to  maintain  her,  and  cannot  make 
the  expenses  a  charge  on  her  separate  estate.  Nor  can  the 
admissions  of  the  wife,  during  coverture,  that  the  expenses 
were  to  be  borne  by  her  separate  estate,  be  set  up  by  the  hus- 
band to  impair  her  rights  under  the  settlement.^  "  The  utmost 
I  can  do  in  this  case,"  observed  Chancellor  Kent,  "is  to  allow 
the  husband  to  be  credited  with  any  necessary  reparations 
bestowed  by  him  on  any  part  of  her  estate  ;  and  with  any 
particular  specific  approjDriation  of  her  property  (not  being 
for  the  ordinary  maintenance  of  her  or  his  famil}^)  which  may 
have  been  made  by  her  special  assent  and  direction,  in  the 
given  case,  and  apparently  for  her  benefit."  ^ 

Where  a  conveyance  is  made  in  trust  for  the  separate  use 
of  a  married  woman,  or  for  such  person  as  she  should  direct, 
and  she  makes  no  appointment,  it  is  held  in  Pennsylvania  that 
the  trustee  after  her  death  is  entitled  to  recover  the  property 
for  her  representatives.^  But  if  a  married  woman, 
having  a  separate  *  estate,  survives  her  husband,  the  *  207 
restraints  upon  the  disposal  of  the  estate  inconsistent 
with  its  general  character,  cease  with  the  coverture.'*  Nor  do 
they  revive  on  her  second  marriage.^  And  where,  by  a  will, 
personal  estate  was  given  to  a  trustee,  in  trust,  to  pay  over  the 

the  whole  estate  of  a  wife,  notwithstanthng  coverture,  continues  separate  to  her, 
there  is  no  such  recompense  to  the  husband  for  liis  obligation  for  his  wife's  debts, 
but  on  the  contrary,  there  may  be  a  certainty  of  his  becoming  indebted  on  behalf 
of  his  wife,  with  no  possibility  of  his  receiving  an  amount  even  equal  to  her 
debts."     lb.     And  see  Cater  v.  Everleigli,  4  Desaus.  19. 

1  Meth.  Ep.  Church  v.  Jaques,  1  Johns.  Ch.  450. 

2  lb.  It  may  be  said  that  the  above  case  arose  out  of  an  antenuptial  contract 
between  liusband  and  wife,  and  that  the  court  merely  restrained  the  husband 
from  setting  aside  his  own  bargain. 

*  Dinsinore  v.  Biggert,  9  Barr,  133. 

*  Smith  V.  Starr,  3  Whart.  62.  See  O'Kill  v.  Campbell,  3  Green  Ch.  13  ;  and 
the  recent  case,  Pooley  v.  Webb,  3  Cold.  699. 

6  Hamersley  v.  Smith,  4  Whart.  1*20. 

[217] 


*  207  HUSBAND    AND    WIFE. 

profits  to  a  daughter  of  the  testator,  a  married  woman,  semi- 
annually, for  her  sole  benefit  during  her  life,  the  will  contain- 
ing no  provision  for  a  second  marriage  of  the  daughter  ;  it  has 
been  held  in  North  Carolina  that  upon  the  death  of  the  hus- 
band the  separate  use  ends,  and  does  not  revive  upon  the 
remarriage  of  the  beneficiary.  On  the  contrary,  the  second 
husband's  marital  rights  attach  upon  the  property.^  The  hus- 
band surviving  his  wife  has  the  same  rights  in  her  separate 
estate,  as  in  her  other  property,  even  though  another  be 
appointed  administrator .^ 

The  savings  of  the  interest  arising  from  the  separate  estate 
of  a  married  woman,  are  as  much  separate  property  as  the 
principal,  unless  she  has  suffered  them  to  pass  under  her  hus- 
band's marital  control.  And  property  purchased  with  such 
savings  belongs  to  her  and  continues  suliject  to  the  same 
rules.3  But  furniture  purchased  by  the  wife,  with  the  income 
of  her  separate  estate,  and  mixed  with  the  furniture  of  the 
husband,  becomes  the  property  of  the  husband,  unless  it  was 
understood  between  them,  at  the  time  of  the  purchase,  that 
the  property  should  be  kept  by  him  as  her  trustee  merely.'^ 

Upon  a  bill  by  husband  and  wife  to  recover  her  separate 
property  the  court  may  decline  to  make  the  husband  trustee, 
and  order  payment  to  be  made  to  some  third  person  as 
*  208  trustee  *  for  her.'^  And  where  real  estate  is  conveyed 
in  trust  for  a  married  woman,  and  to  such  person  as 
she  shall  appoint,  it  is  not  necessary  that  the  husband  should 
join  in  the  appointment.^  So  on  a  suit,  either  by  the  husband 
or  the  wife,  in  relation  to  the  wife's  separate  real  and  per- 
sonal estate,  a  suitable  maintenance  will  be  pro\^ded  for  her, 

1  Miller  v.  Bingham,  1  Ired.  Eq.  423. 

2  Spann  v.  Jennings,  1  Hill  Ch.  325 ;  Good  v.  Harris,  2  Ired.  Eq.  630 ;  McKay 
V.  Allen,  6  Yerg.  44.  And  see  recent  case  of  Cooney  v.  Woodburn,  33  Md. 
320. 

3  Merritt  v.  Lyon,  3  Barb.  110;  Hort  u.  Sorrell,  11  Ala.  386.  See  Kee  v. 
Vasser,  2  Ired.  Eq.  553.     See  English  doctrine,  last  chapter. 

«  Shirley  v.  Shirley,  9  Paige,  363. 

5  Boykin  v.  Ciples,  2  Hill  Ch.  200. 

6  Thompson  v.  Murray,  2  Hill  Ch.  204  ;  4  Kent  Com.  318. 

[218] 


WIFE'S  SEPARATE  ESTATE  ;   AMERICAN   DOCTRINE.     *  208 

even  as  against  the  husband's  execution  creditor,  and  even 
though  her  equity  extends  to  the  whole  estate.^ 

Where  the  wife's  separate  estate  is  sold  for  a  debt  of  the 
ancestor  from  whom  it  descended,  it  has  been  held  in  New 
York  that  the  surplus  belongs  to  the  husband.^  And  where  a 
wife  joins  with  her  husband  in  the  conveyance  of  her  land, 
without  any  understanding  or  agreement  that  the  proceeds 
are  to  be  applied  to  her  separate  use,  such  proceeds  vest 
absolutely  in  him  discharged  of  all  claims  on  her  part.^  For 
the  presumption  in  such  cases  is  that  she  voluntarily  abandons 
her  separate  use  in  his  favor  ;  though  the  question  after  all  is 
one  of  evidence.^ 

The  wife's  separate  use  was  sustained  in  Connecticut,  upon 
the  comity  of  nations,  in  a  case  decided  in  1842,  prior  to 
the  married  women's  acts ;  a  policy  of  insurance  against  fire 
having  been  issued  by  an  office  in  that  State,  to  a  married 
woman  residing  in  Canada,  on  her  separate  estate  there  situ- 
ated. The  court  intimated  that  in  Connecticut  a  married 
woman  could  not  be  the  independent  owner  of  property.^ 

The  wife's  separate  use,  as  an  American  system,  or  rather 
as  the  system  of  certain  American  States,  had  thus  far  pro- 
gressed when  our  local  legislatures  took  the  subject  actively 
in  hand.  The  American  equity  courts  had  followed 
the  English  precedents  *  pretty  closely,  but  without  *  209 
displaying  the  same  vigor  and  boldness.  None  of  the 
foregoing  decisions  had  attracted  popular  attention  or  served 
to  bring  out  the  discussion  of  strong  leading  principles  ;  though 
covering  a  period  of  sixty  years  down  to  the  middle  of  the 
present  century.  During  the  preceding  twenty-five  years  a 
change  in  public  opinion  had  been  gradually  wrought  in  this 
country  and  in  England,  —  though  with  us  more  rapidly  than 
abroad.     The  married  woman  of  America  turned  to  the  legis- 

1  Haviland  v.  Myers,  6  Johns.  Ch.  25;  Haviland  v.  Bloom,  ib.  178;  Barrett 
V.  Oliver,  7  Gill  &  J.  191  ;  Slowman  v.  Perryclear,  Riley  Ch.  47. 

2  Wood  V.  Genet,  8  Paige,  137. 

3  Chester  v.  Greer,  5  Humph.  26 ;  Temple  v.  Williams,  4  Ired.  Eq.  39. 

*  See  Temple  v.  Williams,  supra. 

*  Jones  V.  JEtna.  Ins.  Co.,  14  Conn.  501. 

[219] 


*  209  HUSBAND   AND   WIPE. 

lature  rather  than  the  courts  of  her  State  for  a  more  complete 
marital  independence,  for  the  right  to  control  her  own  prop- 
erty, for  freedom  from  the  burdens  of  coverture.  In  shap- 
ing popular  sentiment,  doubtless,  the  annexation  of  territory 
lately  governed  by  the  principles  of  Roman  law  had  consider- 
able influence,  particularly  in  the  States  adjacent  to  Louisiana  ; 
still  more  in  a  national  sense  did  our  rapid  advancement  as  a 
self-governed  nation,  and  the  spread  of  public  education,  of 
independence  in  life  and  manners,  and  of  equal  social  inter- 
course of  the  sexes,  help  on  the  new  reform. 

The  year  1848  saw  a  wondrous  revolution  effected  in  the 
foremost  States  of  this  Union,  as  to  the  property  rights  of  mar- 
ried women  ;  and  this  revolution  has  since  extended  to  every 
section  of  the  country.  The  influence  of  these  changes  has 
also  been  felt  abroad  ;  and  a  like  reform  is  now  being  pressed 
in  the  Englisli  Parliament.^ 

In  1821,  the  legislature  of  Maine  had  authorized  the  wife, 
when  deserted  by  her  husband,  to  sue,  make  contracts,  and 
convey  real  estate  as  if  unmarried,  prescribing  the  mode  of 
procedure  in  such  cases.  A  like  law  previously  existed  in 
Massachusetts.^  These  appear  to  have  been  the  earliest  of 
the  married  women's  acts,  properly  so  called :  the  first-fruits 
of  the  modern  agitation  on  woman's  rights.  The  example  of 
Massachusetts  and  Maine  in  this  respect  was  soon  imitated 
elsewhere.  New  Hampshire,  Vermont,  Tennessee, 
*  210  Kentucky,  and  Michigan  all  passed  *  important  laws 
of  a  similar  character  before  1850.  The  independence 
of  married  women  whose  husbands  were  convicts,  runaways, 
and  profligates,  became  thus  the  first  point  gained  in  the  new 
system.  In  Massachusetts  and  Rhode  Island,  the  wife's 
separate  use  in  life-insurance  contracts  for  her  benefit  was  an 
object  of  special  solicitude  ;  then,  in  1845,  the  former  State 
turned  its  attention  further  to  a  public  recognition  of  marriage 
settlements  and  trusts  for  the  wife's  separate  benefit,  extend- 
ing the  equity  jurisdiction  of  its  courts  for  that  purpose.  The 
right  of  a  married  woman  to  dispose  of  her  property  by  will 
was  legalized  in  Illinois,  Pennsylvania,  Michigan,  and  Con- 

1  See  3  Juridical  Society  Papers  (1870),  part  17. 

2  See  Rev.  Sts.  Maine  (1840),  p.  341;  Rev.  Sta.  Mass.  (1836),  pp.  485,  487. 

£  220] 


WIFE'S  SEPARATE  ESTATE;   AMERICAN  DOCTRINE.    *  210 

necticut  about  the  same  time.  In  Comiecticut,  Ohio,  Indiana, 
and  Missouri,  the  first  reforms  appear  to  have  been  directed 
towards  exempting  the  wife's  property  from  liability  for  her 
husband's  debts  rather  than  giving  her  a  complete  dominion 
over  it.i 

The  Roman  jmnciple  of  an  independent  estate  prevailed  in 
Louisiana  at  the  time  of  its  admission  into  the  Union ;  and 
like  traces  appear  in  the  legislation  of  Florida,  Arkansas, 
Texas,  and  other  adjacent  States.  So  was  the  doctrine  of 
separate  estate  promulgated  by  Mississippi  statute  as  early  as 
1839.2  And  in  other  Southern  States,  as  Alabama  and  North 
Carolina,  where  chancery  jurisprudence  was  well  established, 
appeared  laws  investing  the  courts  with  larger  powers  in 
matters  of  this  sort.^  Alabama  and  Mississippi  appear  to  have 
first  postponed  the  husband's  liability  for  his  wife's  antenup- 
tial debts  to  her  separate  estate.^ 

But  the  sweeping  changes  effected  by  the  legislature  of 
New  York,  in  1818,  deserve  more  than  a  passing  notice.  The 
debates  of  the  constitutional  convention  of  that  State  in  18-16 
evinced  the  growing  desire  for  a  radical  reform  in  the 
property  rights  of  *  married  women  ;  and  the  advocates  *  211 
of  the  movement,  failing  in  their  attempt  to  secure  an 
article  of  amendment  to  the  State  constitution  on  their  behalf, 
next  addressed  themselves  to  the  legislature ;  and  with  suc- 
cess. On  the  7th  of  April,  1848,  was  enacted  a  law  "  for  the 
more  effectual  protection  of  married  women,"  which  provided 
that  the  real  and  personal  property  of  any  female  already 
married,  or  who  may  hereafter  marry,  which  she  shall  own  at 
the  time  of  marriage,  and  the  rents,  issues,  and  profits  thereof, 
shall  not  be  subject  to  the  disposal  of  her  husband,  nor  be 
liable  for  his  debts,  and  shall  continue  her  sole  and  separate 
property  as  if  she  were  a  single  female  ;  and  that  any  married 
female  may  lawfully  receive  and  hold  property  in  like  man- 

1  See  2  Bright  Hus.  &  Wife,  Am.  ed.  1850,  p.  627  et  seq.,  where  married 
women's  acts  are  cited  by  Mr.  Lockwood  ;  2  Kent  Com.  130,  n. 

■^  See  2  liriglit,  ib.     The  influence  of  a  large  commercial  city,  like  New  Or- 
leans, was  doubtless  felt  in  tiie  sparsely  settled  territory  surrounding  it.     Tiie 
codes  of  tiiese  States  were  all  disfigured  by  "  chattel  "  provisions,  whicii  detracted 
much  from  the  merits  of  a  policy  otherwise  humane  to  the  wife. 
2Brigiit,  ib.  4  Ib.  (1846). 

[221] 


*  211  HUSBAND  AND  WIFE. 

ner  from  any  person  other  than  her  husband,  —  whether  by 
gift,  grant,  devise,  or  bequest.  This  statute,  passed  at  such  a 
time  by  the  foremost  State  in  the  Union,  —  a  State  thoroughly 
Northern  in  its  institutions,  while  the  recognized  champion  of 
chancery  principles,  —  could  not  fail  to  make  a  deep  national 
impression.^ 

A  parallel  movement  had  meanwhile  progressed  in  Penn- 
sylvania ;  and  in  that  State  an  act  of  the  legislature,  dated 
only  four  days  later,  conferred  substantially  the  same  rights 
of  property  upon  married  women,  though  expressed  in  differ- 
ent language.  This  act,  still  more  remarkable  in  its  general 
provisions  than  that  of  New  York,  not  only  recognized  the 
wife's  separate  use  in  her  own  property  as  a  legal  right,  but 
at  the  same  time  gave  her  the  power  to  dispose  of  such  estate 
by  will,  made  it  liable  for  family  necessaries  in  failure  of  at- 
tachable property  belonging  to  the  husband,  admitted  children 
to  the  inheritance  of  separate  personal  estate  in  common  with 
the  surviving  husband,  and  exempted  the  husband  from  all 
liability  for  his  wife's  antenuptial  debts.  It  farther  provided 
that  the  wife's  separate  property  should  be  absolutely 

*  212    liable  for  her  general  contracts  *  and  torts,  and  that 

only  her  formal  consent,  given  in  the  manner  therein 
specified,  could  bring  the  property  under  subjection  for  the 
husband's  debts,  or  effect  a  lawful  transfer.^  It  should  be 
said  that  Michigan  had  enacted  laws  in  1844,  giving  enlarged 
powers  to  the  wife  to  hold  and  dispose  of  separate  property ; 
thus  anticipating  some  of  the  statutory  changes  both  in  New 
York  and  Pennsylvania.^ 

From  this  time  forth  the  revolution  became  rapid,  and  ex- 
tended to  nearly  all  the  States :  Virginia  and  Delaware  consti- 
tuting exceptions.  And  the  work  still  goes  on.  Scarcely  a 
year  has  passed  within  the  last  fifteen  years  without  some  new 
married  women's  acts  added  to  the  local  statute  books.* 

1  We  give  the  substance  rather  than  the  language  of  this  statute.  See  2 
Bright  Hus.  &  Wife,  Am.  ed.  1850,  Lockwood's  note,  581  et  seq.  This  statute 
was  afterwards  considerably  modified  by  acts  of  1849,  c.  375,  and  1860,  c.  90, 

§1- 

2  Bright,  ib.  p.  648  ;  Laws  Penn.  1848,  pp.  536,  537,  538. 
»  Rev.  Stat.  Mich.  (1846),  p.  340. 

*  The  acts  now  in  force,  many  of  them  perplexing,  which  need  not  here  be 

[  222] 


WIFE'S  SEPARATE  ESTATE;  AMERICAN  DOCTRIXE.  *  213 

*  In  general,  it  may  be  remarked  that  the  American    *  213 
statutes  relating  to  married  women  are  designed  for 

detailed,  may  be  briefly  summed  up  as  presenting  this  day  the  following  Ameri- 
can system  of  positive  law.  In  Maine,  a  liberal  right  in  married  women  of  hold- 
ing property  to  separate  use  independently  of  the  husband's  control,  which  the 
wife  may  relax  by  a  revocable  instrument  enabling  her  husband  to  manage  it. 
In  New  Hampshire,  a  right  in  the  wife  to  hold  from  strangers,  and  from  her 
husband  where  not  in  fraud  of  creditors,  and  to  acquire  her  own  earnings  when 
deserted.  In  Vermont,  less  explicit  legislation  (chancery  powers  in  this  State 
being  large)  ;  but  earnings  under  like  circumstances,  and  money  damages  in  any 
case,  secured  to  her  separate  use  ;  rents,  issues,  and  profits  of  her  property  being 
exempt  from  attachment  for  her  husband's  debts.  In  Massachusetts  (the  lan- 
guage of  whose  statutes  has  been  closely  followed  in  many  of  the  Western 
States),  a  liberal  right  to  hold,  acquire,  and  control  separate  property,  including 
compensation  for  release  of  dower  and  property  under  settlements  from  her 
husljand;  also  her  own  earnings.  In  Rhode  Island,  exemption  of  the  wife's 
sole  and  separate  property  from  liability  for  the  husband's  debts,  but  favor 
shown  to  the  husband's  general  control.  In  Connecticut,  a  somewhat  limited 
recognition  of  separate  estate  in  the  wife  ;  but  a  clear  right  given  to  her  earnings 
and  the  proceeds  of  real  estate  ;  also  personal  estate,  coming  during  coverture, 
made  subject  to  her  antenuptial  debts  ;  the  husband's  control  and  management 
being  favored.  In  New  York,  the  most  liberal  provisions  on  the  wife's  behalf 
as  to  property  held  before  marriage  and  acquisitions  during  coverture  through 
her  husband  or  third  persons  ;  also  her  earnings ;  a  complete  emancipation  from 
marital  dominion.  In  New  Jersey,  a  similar  policy,  but  more  guarded.  In 
Pennsylvania,  large  privileges,  as  already  detailed ;  which  however  the  coiu"ts 
are  disposed  to  restrict.  In  Maryland,  a  liberal  policy,  yet  the  disposition  shown 
rather  to  secure  against  the  husband's  debts  by  chancery  protection,  than  to  give 
the  wife  a  statutory  marital  dominion.  In  Ohio,  no  sweeping  statutes,  but  gen- 
eral exemption  of  tlie  wife's  separate  estate  from  her  husband's  debts,  even  to 
his  life-interest  in  her  real  estate.  In  Miciiigan,  a  liberal  policy.  In  Indiana,  a 
peculiar  policy,  somewhat  on  the  community  plan,  tending  to  place  all  of  the 
wife's  real  and  personal  property  under  the  same  marital  rules,  giving  the  wife 
a  separate  ownership  in  both,  but  restricting  her  power  of  transfer.  In  Illinois, 
laws  similar  to  those  of  Massachusetts,  but  which,  so  far  as  the  wife's  control  ia 
concerned,  the  courts  seem  more  disposed  to  enlarge.  So  in  Wisconsin,  Minne- 
sota, and  Kansas.  In  Iowa,  rather  more  limited  legislation  on  behalf  of  separate 
estate  ;  including  a  wholesome  registry  provision.  In  California,  a  policy  savor- 
ing strongly  of  the  Spanish  community  system,  formerly  prevalent  there  ;  prop- 
erty of  both  husband  and  wife  at  the  date  of  marriage,  or  acquired  from  others 
during  coverture,  being  regarded  as  the  separate  property  of  each ;  property 
otherwise  acquired  during  coverture,  as  the  common  property  of  both.  In  Ne- 
vada, similar  laws.  In  Oregon,  the  exemption  of  the  wife's  property  from 
liabiUty  for  her  husband's  debts,  a  principle  engrafted  upon  the  fundamental  law 
of  that  State  ;  with  a  registry  system  in  force.  In  Nebraska,  liberal  rights 
vested  in  married  women.  In  Missouri,  exemption  of  the  wife's  property  from 
bability  for  her  husband's  debts,  the  legislation  being  directed  rather  to  lands 
than  personal  estate.  In  Kentucky  (where  the  wife's  separate  estate  has  been 
fully  recognized  in  equity),  a  somewhat  peculiar  restraint  placed  upon  the  bus- 

[223] 


*  213  HUSBAND   AND   WIFE. 

her  benefit,  and  that  they  do  not  Hmit,  but  rather  extend,  her 
right  to  hold  separate  property.  Thus  it  is  held  that  the 
wife's  equity  to  a  settlement  from  her  cJioses  in  action  remains 
as  before  ;  for  the  legislature  intended  to  offer  her  Avhat  was 
supposed  to  be  a  more  valuable  right,  leaving  it  to  her  elec- 
tion to  claim  the  benefit  of  the  act  or  to  assert  her  equity  to 
a  settlement  without  regard  to  its  provisions.^ 

So  property  purchased  with  funds  held  to  her  separate  use, 
or  with  the  proceeds  or  income  thereof,  is  her  sejjarate  prop- 
erty, even  though  her  husband  was  the  agent  in  making  the 
purchase,  and,  as  the  rule  is  sometimes  applied,  notwithstand- 
ing the  new  securities  stand  in  his  own  name,  so  long  as  it 
appears  that  she  had  not  meant  to  surrender  her  separate 
rights.^  A  married  woman  transferring  stock  after  marriage, 
with  her  husband's  acquiescence,  from  her  maiden  to  her 
married  name,  may  retain  it  as  her  separate  property.^  The 
doctrine  of  merger,  operating  to  the  wife's  disadvantage,  be- 
cause of  her  husband's  acts,  is  not  favored.*     And  a 

*  214    liberal  rule  is  laid  down  in  Connecticut,  *  with  respect 

to  the  j)roceeds  of  real  estate  (which  by  statute  are 
secured  to  the  wife),  while  they  lie  in  the  bank  for  safety  or 
remain  in  cash  in  the  wife's  possession  awaiting  an  oppor- 

band's  marital  rights  so  as  to  protect  the  wife's  property,  prima  facie,  from 
Uability  for  his  debts,  while  limiting  the  husband's  liability  for  her  antenuptial 
debts.  Marital  rights  oi  the  wife  are  favored  in  Tennessee  so  far  as  to  shield 
her  property  from  tlie  husband's  debts  ;  but  not  so  as  to  vest  the  control  in  her. 
In  Arkansas,  a  liberal  policy  prevails,  with  apparent!}'  reasonable  bounds ;  and 
here  a  registry  system  exists.  Important  changes  are  now  going  on  in  the 
legislation  of  the  Southern  States,  and  it  appears  likely  that  their  laws  will  be 
brouglit  into  conformitj'  with  the  general  American  system  in  this  respect. 
Under  the  Georgia  Constitution  of  1868,  the  wife  may  purchase,  hold,  and  con- 
vey property,  contract,  sue,  and  be  sued,  as  a  single  woman  ;  her  rights  are  very 
extensive.  Huff  v.  Wrigiit,  39  Geo.  41.  See  latest  statutes  of  the  different 
States  above  referred  to  ;  and  see  Cartwright  i;.  Holhs,  5  Tex.  152;  Childress 
V.  Cutter,  16  Mis.  24  ;  Panaud  v.  Jones,  1  Cal.  488 ;  Cutter  v.  Waddingham,  22 
Mis.  206. 

1  Blevins  i;.  Buck,  26  Ala.  292. 

■J  Hutchins  v.  Colby,  43  N.  H.  159 ;  Kirkpatrick  i;.  Bauford,  21  Ark.  268. 
And  see  Teller  v.  Bishop,  8  Minn.  226;  Leland  v.  Whitaker,  23  Mich.  324; 
Marsh  v.  Marsh,  43  Ala.  677;  Fowler  v.  Rice,  31  Ind.  258  ;  Pike  v.  Baker,  53 
111.  163;  Vreeland  v.  Vreeland,  1  C.  E.  Green,  512;  Dayton  v.  Fisher,  34  lud. 
356. 

'  Mason  v.  Fuller,  36  Conn.  160.  *  Clark  v.  Tennison,  83  Md.  85. 

[  224] 


i 


WIFE'S  SEPARATE  ESTATE;   AMERICAN  DOCTRINE.     *  214 

tunity  for  investment.^  The  natural  increase  and  profits  of  a 
wife's  separate  estate,  under  our  legislation,  are  usually  hers 
and  at  her  disposal  during  marriage  as  well  as  the  property 
which  produced  the  increase  and  profits.^  Leasehold  prop- 
erty, too,  may  be  held  and  enjoyed  by  the  wife.^ 

The  married  women's  acts,  we  may  here  add,  raise  new 
questions  as  connected  with  the  husband's  appropriation  of 
his  wife's  personal  property  to  himself,  and  especially  con- 
cerning his  reduction  into  possession  of  her  incorporeal  per- 
sonals or  choses  in  action  ;  and  evidence  of  the  wife's  consent 
is  now  required  in  many  States  before  his  act  of  appropriation 
shall  be  considered  complete.  For  while,  as  we  shall  here- 
after see,  she  may  bestow  her  goods  and  chattels  uj^on  him, 
under  suitable  circumstances,  he  can  no  longer  go  to  work,  as 
he  could  at  the  common  law,  and  make  his  title  complete 
without  reference  to  her  wishes.'* 

A  married  woman,  in  order  to  preserve  her  separate  prop- 
erty, should  keep  it  distinct  from  that  of  her  husband ;  and 
especially  does  the  rule  hold  true  in  States  where  presump- 
tions are  against  her  exclusive  right.  Thus  it  is  held  that  if 
a  married  woman  willingly  allows  her  separate  property  to  be 
so  mixed  into  a  common  mass  with  that  of  the  husband  as  to 
be  undistinguishable,  or  acquiesces  in  leaving  it  so,  it  must  as 
to  her  husband's  creditors  be  treated  as  relinquished  to  him.^ 
A  title  to  separate  estate  cannot  be  vested  in  the  wife  on  her 
husband's  credit,  where  the  statutes  only  recognize  her  right 
to  acquire  from  third  persons,  an}'  more  than  it  could  by  his 
money  ;  and  if  certain  property  be  purchased  in  part  from 
her  own  funds,  and  in  part  from  her  husband's,  whatever  the 
form  of  the  investment,  her  title  extends  only  to  the  amount 
of  her  investment.^     On  the  other  hand,  where  the  husband 

1  Jennings  v.  Davis,  31  Conn.  134. 

2  Williams  v.  McGrade,  13  Minn.  46  ;  Hanson  i\  Millett,  55  Me.  184. 

3  Vandevoort  v.  Gould,  36  N.  Y  639. 

<  Vreeiaiid  t-.  Vreeland,  1  C.  E.  Green,  512 ;  King  v.  Gottsclialk,  21  Iowa, 
512 ;  Haswell  v.  Hill,  47  N.  H.  407.     See  ch.  5,  supra. 

6  Glover  v.  Alcott,  11  Mich.  470;  Gross  v.  Reddy,  45  Penn.  St.  406  ;  Kelly 
V.  Drew,  12  Allen,  107. 

«  Hopkins  v.  Carey,  23  Miss.  54 ;  AVortli  v.  York,  13  Ired.  206.  See  Barrou 
V.  Barron,  20  Vt.  375 ;  Haines  v.  Haines,  54  111.  74. 

15  [  225  ] 


*  214  HUSBAND  AND   WIFE. 

has  kept  her  funds  distinct  from  his,  though  changing  invest- 
ments from  time  to  time,  her  right  to  claim  the  property  from 
his  estate,  upon  surviving  him,  has  been  strongly  asserted.^ 

Yet  broad  as  they  may  often  appear,  these  statutes  are 
somewhat  restrained  by  judicial  construction.  In  Massachu- 
setts, Maine,  California,  Wisconsin,  Illinois,  and  other  States, 
the  presumjDtion  is  still,  in  absence  of  suitable  words,  or  cir- 
cumstances manifesting  an  intent  on  the  j)art  of  those  inter- 
ested to  claim  the  benefits  of  the  statute,  that  a  married 
woman's  property  belongs  to  her  husband  as  at  the  common 
law  ;  and  his  possession  of  the  property  undisputed  and  unex- 
plained, gives  him  the  marital  dominion.^  In  Pennsylvania, 
the  courts  were  at  first  disposed  to  rule  otherwise,  but  they 
too  have  finally  settled  upon  the  same  presumption.^  On  the 
other  hand,  the  New  York  courts  approve  the  new  system 
to  its  widest  extent,  thus  far ;  and  it  would  appear  that 
married  women  in  that  State  are  wellnigh  emancipated 
altogether  from  marital  restraints,  so  far  as  concerns  their 
property,  while  the  husband's  own  rights  therein  are  exceed- 
ingly precarious.'* 

In  New  York  and  Mississippi  it  is  held  that  the  married 
women's  act  does  not  oust  the  original  jurisdiction  of  courts 
of  equity  in  cases  affecting  the  separate  estates  of  married 
women.^  Speaking  of  the  legislation  in  the  former  State,  the 
court  observes  that  the  statutes  of  1848  and  1849  are  but  the 

1  Fowler  v.  Rice,  31  Ind.  358. 

2  Eklridge  v.  Preble,  34  Me.  148  ;  Smith  v.  Henry,  35  Miss.  369  ;  Alverson  v. 
Jones,  10  Cal.  9 ;  Farrell  v.  Patterson,  43  111.  52  ;  Stanton  v.  Ivirsch,  6  Wis.  338  ; 
Smith  V.  Hewett,  13  Iowa,  94.  Contra,  Johnson  v.  Ilunyan,  21  Ind.  115;  Stew- 
art V.  Ball,  33  Mis.  154. 

3  Cf.  Gamber  v.  Camber,  18  Penn.  St.  863 ;  Winter  v.  Walter,  37  Penn.  St. 
157 ;  Bear's  Administrator  v.  Bear,  33  Penn.  St.  525 ;  Gault  v.  Baffin,  44  Penn. 
St.  307 ;  with  Goodyear  v.  Eumbaugh,  13  Penn.  St.  480.  And  see  Curry  v. 
Bott,  53  Penn.  St.  400 ;  Richardson  v.  Stodder,  100  Mass.  528.  But  a  convey- 
ance to  a  married  woman's  separate  use  does  not  create  in  her  a  separate  estate 
by  contract  in  opposition  to  her  separate  estate  by  statute,  where  a  large  por- 
tion of  the  purcliase-money  came  I'rom  her  separate  statutory  estate.  Molton  v. 
Martin,  43  Ala.  651. 

4  Peters  v.  Fowler,  41  Barb.  467 ;  Knapp  v.  Smith,  27  N.  Y.  277. 

3  Mitdiell  V.  Otey,  23  Miss.  236;  Colvin  v.  Currier,  22  Barb.  371  [Strong,  J., 
dissenting]. 

[  226] 


WIFE'S  SEPARATE  ESTATE;  AMERICAN  DOCTRINE.     *  214: 

legislative  adoption  of  the  equitable  rules,  and  their  applica- 
tion to  all  property  of  the  wife  whether  legal  or  equi- 
table. "  The  evil  complained  of  *  was  the  too  great  *  215 
subjection  of  the  property  of  the  wife,  at  common  law, 
to  the  control  of  the  husband  and  his  creditors.  The  remedy 
was  to  apply  the  rule  of  this  court,  in  respect  to  the  separate 
property  of  married  women,  to  all  property  belonging  to  the 
wife.  It  is  true  the  property  is  thus  converted  into  a  legal 
estate,  but  it  is  none  the  less  a  separate  estate^  independent  of 
the  husband.'"  ^ 

How  great  the  change  which  our  legislation  has  wrought 
in  the  marital  rights  and  duties  relating  to  j)roperty  as  the 
common  law  defined  them,  will  appear  at  a  glance.  Some  of 
the  married  women's  acts  charge  the  wife's  separate  estate 
with  articles  of  "  family  supply ; "  though  not  unless  she 
contracted  for  the  articles,  or  unless  at  least  her  husband 
was  destitute  of  the  means  of  payment.^  So  it  is  now  found 
in  many  of  the  States  that  the  husband's  liability  for  his 
wife's  antenuptial  debts  is  either  modified  to  the  extent  of 
property  received  through  her  or  else  abolished  altogether ; 
her  separate  estate,  if  she  have  any,  being  made  subject 
instead  to  their  payment.'^  In  Ohio  and  some  other  States, 
the  husband's  life-interest  is  protected  from  attachment  dur- 
ing marriage  ;  and  it  is  generally,  though  not  uniformly, 
preserved,  as  well  as  his  tenancy  by  the  curtesy.*     But,  on 


1  Colvin  V.  Carrier,  ib.  382.     And  see  Clawson  v.  CI;i\vson,  25  Ind.  229. 

2  Cunningham  v.  Fontaine,  25  Ala.  644 ;  Rogers  v.  Boyd,  33  Ala.  175  ;  Finn 
V.  Rose,  12  Iowa,  565.  See  Sharp  i;.  Burns,  35  Ala.  653  ;  Callahan  y.  Patterson, 
4  Tex.  61.  Debt  incurred  in  procuring  a  sub.stitute  for  husband  who  was  drafted 
is  not  included  among  "  necessaries  "  thus  chargeable  upon  the  wife.  Ford  v. 
Teal,  7  Bush,  156.  See  further  Lawrence  v.  Sinnanion,  24  Iowa,  80.  State  aid 
to  a  soldier's  wife  is  chargeable  as  above.     Hammond  v.  Corbett,  51  N.  H.  311. 

8  Roundtree  v.  Thomas,  32  Tex.  286  ;  Cannon  v.  Grantham,  45  Jliss.  88  ; 
Madden  i'.  Gilmer,  40  Ala.  637  ;  Bryan  v.  Doolittle,  38  Geo.  255 ;  Smiley  v. 
Smiley,  18  Oliio  St.  543;  Bailey  v.  Pearson,  9  Fost.  77;  Reunecker  v.  Scott,  4 
Greene  (Iowa),  185;  Curry  v.  Shrader,  19  Ala.  831  ;  Callahan  v.  Patterson,  4  Tex. 
61.     But  as  to  Illinois,  see  Connor  v.  Berry,  46  111.  370. 

*  Bachman  v.  Clirisman,  23  Penn.  St.  162  ;  Van  Note  v.  Downey,  4  Dutch. 
219  ;  Rose  v.  Sanderson,  38  111.  247.  In  some  States  curtesy  consummate  is  pro- 
tected, while  the  husband's  usufruct  during  his  wife's  life  is  taken  awav.     Porch 

[227] 


*  215  HUSBAND  AND  WIFE. 

equity  principles,  if  the  trust  by  terms  clearly  exclude  him, 
or  if  real  estate,  conveyed  to  the  wife  expressly  for  her  sole 
and  separate  use,  with  power  of  disposal,  be  regularly  dis- 
posed of  by  her  before  her  death,  the  husband  cannot  have 
his  curtesy  therein. ^ 

Some  married  women's  statutes  have  either  taken  away  the 
husband's  lialjility  for  his  wife's  misconduct,  and  very  properly 
fastened  it  upon  her  separate  estate ;  or  else  limited  his  lia- 
bility for  her  frauds  and  injuries  to  that  of  a  surety .^  So, 
too,  the  tendency  of  modern  legislation  is  to  secure  to  the 
wife's  separate  use  all  compensation  in  the  nature  of  damages 
for  injuries  sustained  by  her  through  the  negligence  or  mis- 
conduct of  others.^  And  in  Ohio  it  is  held  that  where  the 
wife's  separate  property  is  destroyed  by  the  wrongful  acts  of 
a  third  party ;  as  where  her  baggage  is  lost  on  a  rail- 

*  216    road  ;  any  judgment  *  she  may  recover   therefor  be- 

comes likewise  her  separate  property.* 
Unlike  the  wife's  separate  estate  in  equity,  the  separate 
property  of  a  married  woman  under  American  statutes  seems 
sometimes  to  retain  its  qualities  after  her  death.  Her  admin- 
istrator often  claims  it  against  her  surviving  husband.^  The 
husband,  Avhile  the  marriage  relation  lasts,  may  become  bound 
as  trustee  of  her  separate  estate,  not  only  by  express  appoint- 

V.  Fries,  3  C.  E.  Green,  204.  And  see  Lynde  v.  McGregor,  13  Allen,  182 ; 
Montgomery  v.  Tate,  12  Ind.  615. 

1  See  supra,  p.  194  ;  Stokes  v.  McKibbin,  13  Fenn.  St.  267  ;  Pool  v.  Blakie,  53 
111.  495. 

2  Brown  v.  Kemper,  27  Md.  666.  Joinder  of  the  husband  is  not  necessary  in 
torts  and  frauds  of  the  wife  relating  to  her  separate  estate.  Baum  v.  Mullen,  47 
N.  Y.  577  ;  Rowe  v.  Smith,  55  Barb.  417.  Husband  and  wife  cannot  be  indicted 
for  larceny  of  one  another's  property  under  our  married  women's  act,  more  than 
at  common  law.     Thomas  v.  Thomas,  51  111.  162. 

3  Waldo  V.  Goodsell,  33  Conn.  432 ;  Moody  v.  Osgood,  50  Barb.  628 ;  Knapp 
t',.  Smith,  27  N.  Y.  277.  And  the  wife  sues,  in  general,  in  her  individual  name 
for  that  purpose.  Berger  v.  Jacobs,  21  IMich.  215  ;  Ball  v.  Bullard,  52  Barb. 
141 ;  Chicago,  &c.,  R.  R.  Co.  v.  Dunn,  52  111.  260.  Otherwise  in  Shaddock  v. 
Clifton,  22  Wis.  114;  Pancoast  v.  Burnell,  32  Iowa,  394.  And  see  State  v. 
Hulick,  4  Vroom,  307. 

*  Fierson  v.  Smith,  9  Ohio  St.  554.  Wife  under  some  statutes  may  sue  a 
liquor  seller  for  damages  caused  her  by  selling  liquors  to  her  husband.  Schnei- 
der V.  Hosier,  21  Ohio  St.  98. 

6  Leland  v.  Whitaker,  23  Mich.  324. 
[228  J 


WIFE'S  SEPARATE  ESTATE;   AMERICAN  DOCTRINE.     *216 

ment,  but  through  niiplication,  as  under  the  equity  rule.^ 
And  since  the  opportunities  afforded  him  for  mixing  up  his 
property  with  hers  are  very  great,  in  the  present  raw  age  of 
our  legislation,  we  often  find  her,  upon  surviving  him,  a  general 
creditor  against  his  estate,  or  the  claimant  of  a  trust  fund, 
which  cannot  easily  be  identified.^ 

How  far  the  acts  relating  to  the  property  of  married  women 
are  qualified  by  constitutional  restraints  has  been  frequently 
discussed  in  late  years.  The  Constitution  of  the  United  States 
expressly  forbids  the  States  to  pass  any  ex  j^ost  facto  law,  or 
law  impairing  the  obligation  of  contracts.^  The  decisions  are 
uniform  to  the  effect  that  the  late  statutes  cannot  affect  rights 
of  the  husband  already  vested  under  a  marriage  pre- 
viously solemnized."^  But  they  go  no  *  further  ;  for,  as  *  217 
it  has  been  observed,  the  marriage  contract  does  not 
imply  that  the  husband  shall  have  the  same  interest  in  the 
future  acquisitions  of  the  wife  that  the  law  gives  him  in  the 
property  she  possesses  at  the  time  of  the  marriage,  but  rather 
that  she  shall  have  whatever  interest  the  legislature,  before 
she  is  invested  with  them,  may  think  proper  to  prescribe.^ 
As  to  whether  the  married  women's  acts  can  affect  tlie  wife's 
property  in  action  not  already  reduced  into  possession  authori- 
ties are  divided.*^ 

1  Walter  v.  Walter,  48  Mis.  140 ;  Hall  v.  Creswell,  46  Ala.  4G0.  In  Connect- 
icut, a  husV)and  is  specially  clesiy;nated  by  law  as  iiis  wife's  trustee.  Sherwood 
V.  Siierwood,  32  Conn.  1.     So  in  Alabama.     Marsh  v.  Marsh,  43  Ala.  (577. 

-  Martin  v.  Curd,  1  Bush,  327  ;  Hause  v.  Gilger,  52  Penn.  St.  412  ;  Fowler  v. 
Rice,  31  Ind.  258. 

3  Const.  United  States,  art.  1,  §  10. 

*  Carter  v.  Carter,  14  S.  &  M.  59  ;  Eldridge  v.  Preble,  34  Me.  148  ;  Maynard 
V.  Williams,  17  Ala.  676 ;  Snyder  v.  Snyder,  3  Barb.  021  ;  Perkins  v.  Cottrell,  15 
Barb.  446 ;  Ratcliffe  v.  Dougherty,  24  Miss.  181 ;  Jenney  v.  Gray,  5  Ohio  St. 
45 ;  Roby  v.  Boswell,  23  Geo.  51 ;  Burson's  Appeal,  22  Penn.  St.  164 ;  Tally  v. 
Tiiorapson,  20  Mis.  277;  Peck  v.  Walton,  26  Vt.  82;  Tyrson  v.  Mattair,  8  Fla.'. 
107;  Quigley  v.  Graham,  18  Ohio  St.  42;  Farrell  v.  Patterson,  43  III.  52; 
Coombs  V.  Read,  16  Gray,  271.  See  Love  v.  Robertson,  7  Tex.  6.  Nor  rights 
acquired  subsequently  under  a  foreign  government.  Dubois  i'.  Jackson,  49  III. 
49. 

*  Sleight  V.  Read,  18  Barb.  159  ;  Southard  v.  Plummer,  36  Me.  64. 

•»  Goodyear  v.  Rumbaugh,  13  Penn.  St.  480  ;  Mellinger  v.  Bausnian,45  Penn. 
St.  522;  Henry  v.  Dilley,  1  Dutch.  302,  maintaia  the  affirmative.     Wcstervelt  v. 

[  229  ] 


*2n  HUSBAND  AND  WIFE. 

A  corresponding  rule  of  constitutional  limitations  applies  to 
the  rights  and  liabilities  of  the  wife  under  these  acts,  as  to  her 
title  by  gift  or  purchase,  and  as  to  her  dominion  over  her  prop- 
erty generall3^^ 

In  Mississippi,  it  is  held  that  property  purchased  by  the  hus- 
band after  the  passage  of  the  act  with  money  acquired  by  the 
wife  by  gift  or  labor  before  it,  even  though  bought  expressly 
for  the  wife's  benefit  and  in  her  name,  belongs  to  the  husband.^ 
In  Alabama,  separate  estates  created  by  deed  before  the  statute 
went  into  effect  remain  unaffected  thereby,  though  the  mar- 
riage took  place  subsequently.^  In  New  York,  judgments  re- 
covered against  a  husband  prior  to  the  married  women's  act 
are  not  a  lien  upon  the  wife's  subsequently  acquired  property.^ 
In  Missouri,  the  act  exempting  property  of  the  wife  from  lia- 
bility for  the  husband's  debts  does  not  affect  debts  contracted 
prior  to  the  passage  of  the  act  and  after  the  wife  came  into 
possession  of  the  property.^ 

In  New  York,  it  is  held  that  the  legislature  may  fasten  upon 
the  wife's  separate  bank  stock  a  personal  liability  to  the  extent 
of  such  stock.^  Also  that  interest,  accrumg  subsequently  to 
the  married  women's  act,  on  property  previously  vested  in  the 
husband,  continues  his.'^  The  California  statutes  em- 
*  218  brace  *  property  held  as  separate  by  women  married 
after  the  passage  of  the  act  without  reference  to  the 
time  when  it  was  acquired.^ 

There  are  later  American  decisions  which  rest  upon  strictly 
equitable  rules  ;  and  increasing  liberality  toward  the  wife  is 

Gregg,  2  Kern.  202  ;  Ryder  v.  Hulse,  24  N.  Y.  372 ;  Stearns  v.  Weathers,  30  Ala. 
712,  maintain  the  negative.  A  vested  interest  in  a  contingent  remainder  is  an 
interest  in  tlie  husband  wliich  will  be  saved  from  the  operation  of  a  subsequent 
"  married  women's  act."    Dunn  v.  Sargent,  101  Mass. 

1  Bryant  v.  Merrill,  55  Me.  515;  Clark  v.  Clark,  20  Ohio  St.  128;  Lee  v.  Lan- 
ahan,  58  Me.  478. 

a  Sliarp  V.  Maxwell,  30  Miss.  442. 

8  Willis  V.  Cadenliead,  28  Ala.  472.     And  see  Hardy  v.  Boaz,  29  Ala.  168. 
,     *  Sleight  V.  Read,  18  Barb.  159.  5  Cunningham  v.  Gray,  20  Mis.  170. 

e  Matter  of  Reciprocity  Bank,  29  Barb.  369. 

7  Ryder  v.  Hulse,  33  Barb.  264  ;  s.  c.  on  appeal,  24  N.  Y.  372.  See  Savage  v. 
O'Neil,  42  Barb.  374. 

8  Maclay  v.  Love,  25  Cal.  367.    See  Morrison  v.  Norman,  47  111.  477. 

[  230] 


WIFE'S  SEPARATE  ESTATE;    AMERICAN  DOCTRINE.     *  218 

manifested  therein.^  Thus  in  some  States  a  separate  estate  in 
personal  property  is  held  to  be  created  in  a  married  woman  by 
a  parol  gift,  where  the  evidence  to  establish  it  is  clear  and 
satisfactory .2  In  Massachusetts,  a  separate  use  is  created  where 
the  husband  deposits  money  in  a  savings  bank  in  the  name 
and  to  the  credit  of  his  wife,  declares  that  the  money  is  hers 
and  that  he  wishes  it  put  in  her  name,  and  delivers  the  deposit 
book  to  her ;  so,  too,  when  he  keeps  one  bank  account  there 
in  his  own  name,  and  another  in  his  wife's  name.^  As  to 
words  which  will  create  a  separate  use  in  a  convej'ance,  any 
language  now  suffices,  clearly  expressing  an  intent  to  create 
it,  whatever  the  technical  words  ;  but  not,  per  se,  words  like 
"  for  the  use  and  benefit  of ;  "  nor  even  conveyance  to  a  wife 
"  in  her  own  right."  ^  Trust,  to  pay  income  to  a  wife  "  for 
and  during  the  joint  lives  of  her  and  her  husband,  taking  her 
receipt  therefor,"  is  held  to  give  her  a  sole  and  separate  estate 
in  the  income.^ 

1  See,  as  to  words  which  constitute  a  separate  estate,  Wilson  v.  Bailer,  3 
Strobh.  Eq.  258 ;  Clark  v.  Maguire,  16  Mis.  302 ;  Goodrura  v.  Goodrum,  8  Ired. 
Eq.  313 ;  Denson  v.  Patton,  19  Geo.  577  ;  Bradford  v.  Greenway,  17  Ala.  797. 

i  Betts  V.  Betts,  18  Ala.  787  ;  Watson  i-.  Broaddus,  6  Bush,  328  ;  Spaulding  v. 
Day,  10  Allen,  96. 

'  Fisk  V.  Cushnian,  6  Cush.  20.  But  contra,  where  a  deposit  is  made  without 
the  husband's  privity.  McCubbin  v.  Patterson,  16  Md.  179.  And  see  Ryder  v. 
Hulse,  33  Barb.  264  ;  Richardson  v.  Merrill,  32  Vt.  27  ;  Hobensack  v.  Hallraan, 
17  Penn.  St.  154  ;  Gaines  v.  Poor,  3  Met.  (Ky.)  503  ;  Clark  v.  Bank  of  Missouri, 
47  Mis.  17. 

*  Prout  V.  Roby,  15  Wall.  471 ;  Merrill  i;.  Bullock,  105  Mass.  486  ;  Guishaber 
V.  Hainnan,  2  Bush,  320.  See  Williams  i'.  Avery,  38  Ala.  115;  Bowen  v.  Le- 
bree,  2  Bush,  112. 

5  Charles  v.  Coker,  2  S.  C  n.  s.  122. 


[231] 


*219  HUSBAND  AND   WIFE. 


*219  *  CHAPTER   XII. 

THE    wife's    dominion    OVER    HER    SEPARATE    ESTATE. 

The  right  to  enjoy  property  carries  with  it,  as  a  necessary 
incident,  the  right  of  free  disposal.  All  other  things  then 
being  equal,  we  shall  expect  to  find  that  married  women, 
when  allowed  to  hold  estate  to  their  separate  use,  are  per- 
mitted to  sell,  convey,  give,  grant,  bargain,  or  otherwise  dis- 
pose of  it ;  and  further,  to  encumber  it  as  they  please.  Public 
policy  may,  however,  restrain  their  dominion.  We  shall  treat 
in  this  chapter,  y^/'s^,  of  the  English,  and  second^  of  the  Ameri- 
can, rule  on  this  subject. 

First.  In  England,  it  is  the  general  rule,  so  far  at  least  as 
concerns  personal  ^Ji'operty,  that  from  the  moment  the  wife 
takes  the  property  to  her  sole  and  separate  use,  from  the  same 
moment  she  has  the  sole  and  separate  right  to  dispose  of  it ; 
for  upon  being  once  permitted  to  take  personal  property  to 
her  separate  use,  as  a  feme  sole,  she  takes  it  with  all  its  priv- 
ileges and  incidents,  including  the  jus  disponendi.^  And  while 
she  may  be  restrained  by  the  language  of  the  instrument  under 
which  her  title  is  acquired,  yet  the  intention  to  restrain  her 
must  be  clearly  expressed  ;  or  else  she  may  deal  with  the  prop- 
erty as  she  pleases,  either  by  acts  inter  vivos  or  by  wilL^  Her 
power  of  disposition  is  not  confined  to  interests  vested  in  pos- 
session, but  extends  to  reversionary  interests  settled  to  her 
separate  use.^ 

1  Fettiplace  v.  Gorges,  1  Ves.  Jr.  48 ;  3  Bro.  C.  C.  9  ;  Peachey  Mar.  Settl. 
261,  262.     See  20  &  21  Vict.  c.  57,  the  "  reversionary  act." 

2  Ricii  V.  Cockell,  9  Ves.  369 ;  Moore  v.  Morris,  4  Drew.  38 ;  Darkin  v.  Dar- 
kin,  17  Beav.  581 ;  Caton  v.  Hideout,  1  Mac.  &Gord.  601. 

3  2  Bright  Hus.  &  Wife,  222 ;  Macq.  Hus.  &  Wife,  295 ;  Sturgis  v.  Corp,  13 
Ves.  192;  Headen  v.  Roslier,  1  M'Cl.  &  Y.  89;  Donue  v.  Hart,  2  Russ.  &  M. 
360. 

[232] 


1 


WIFE'S  DOMINION  OVER  HER  SEPARATE  ESTATE      *  220 

*  The  same  principle  applies  to  the  income  and  profits  *  220 
of  the  wife's  separate  property.  The  wife  has  the  same 
control  over  her  savings  out  of  her  separate  estate,  as  over  the 
separate  estate  itself;  "  for,"  to  use  the  somewhat  involved 
metaphor  of  Lord  Keeper  Cowper,  so  often  quoted,  "the 
sprout  is  to  savor  of  the  root,  and  to  go  the  same  way."  i 

Where  the  wife's  separate  property  consists  of  real  estate, 
her  power  of  disposition  is  affected  by  technical  difficulties,  as 
to  the  method  of  executing  conveyances.^  But  it  has  been 
suggested  that,  according  to  the  principle  of  modern  equity 
cases,  the  heir  ought  to  be  treated  as  a  trustee,  in  case  the 
wife  had  conveyed  her  beneficial  interest  by  deed  executed 
by  herself  alone,  and  that  thus  her  sole  conveyance  would  be 
allowed  to  operate.'^ 

The  wife  may  enter  into  contracts  with  reference  to  her 
separate  property  in  like  manner,  and  with  the  same  effect  as 
?kfeme  sole.  Formerly  it  was  otherwise  ;  and  for  a  long  period 
the  English  courts  of  equity  refused  to  married  women,  hav- 
ing separate  estate,  the  power  to  contract  debts.^  But  the 
unfairness  of  permitting  a  wife  to  hold  and  enjoy  her  separate 
property  after  she  had  incurred  debts  upon  the  faith  of  it, 
soon  became  evident;  as  well  as  the  inconvenience 
she  suffered  in  *  being  unable  to  find  credit  where  *  221 
she  meant  to  deal  fairly.  So  the  courts  felt  compelled 
after  a  while  to  admit  that  she  might  in  equity  charge  her 
separate  estate  by  a  written  instrument,  executed  with  a  cer- 
tain degree  of  formality,  such  as  a  bond  under  her  hand  and 


1  Gore  V.  Knight,  2  Vern.  535 ;  s.  c.  Prec.  in  Cli.  255.  See  also  Messenger 
!;.  Clarke,  5  Exch.  392  ;  Peachey  Mar.  Settl.  2G2 ;  Newlands  v.  Paynter,  10  Sim. 
377  ;  s.  c.  on  appeal,  4  M.  &  Cr.  408  ;  Humpliery  v.  Ricliards,  2  Jur.  n.  s.  432. 

■■i  2  Roper  IIus.  &  Wife,  182;  1  Bright  IIus.  &  Wife,  224.  See  Ex  parte  Ann 
Shirley,  5  Bing.  22(3,  cited  in  Macq.  Hus.  &  Wife,  296.  See  also  Peachey  Mar. 
Settl.  267 ;  Harris  v.  Mott,  14  Beav.  169. 

3  Macq.  Hus.  &  Wife,  296,  297 ;  2  Story  Eq.  Juris.  §  1390,  and  cases  cited  ; 
3  Sugd.  V.  &  P.  App.  02;  Newcomen  v.  Hassard,  4  Ir.  Ch.  274;  Burnaby  i-. 
Griffin,  3  Ves.  266  ;  Peachey  Mar.  Settl.  268.  The  statute  referred  to  as  raising 
technical  difKculties  in  real  estate  is  3  &  4  Will.  4,  c.  74. 

*  Vaughan  v.  Vanderstegen,  2  Drew.  180;  Peachey  Mar.  Settl.  269;  New- 
comen V.  Hassard,  4  Ir.  Ch.  274. 

[233] 


*  221  HUSBAND  AND  WIFE. 

seal.^  One  precedent  in  the  right  direction  leads  to  another, 
and  soon  less  formal  instruments  were  brought  one  after  an- 
other under  this  rule  ;  promissory  notes,  bills  of  exchange,  and 
lastly  written  instruments  in  general.^  Even  here  the  court 
could  not  safely  intrench  itself ;  for  the  inconsistency  of  draw- 
ing distinctions  between  the  different  sorts  of  engagements  of 
a  married  woman  having  separate  estate,  could  be  readily 
shown ;  but  it  made  a  halt.  The  doctrine  of  an  equitable 
appointment  was  alleged  to  support  the  new  distinction.^ 
Sound  reasoning  at  last  proved  too  strong  an  antagonist ; 
this  position  was  abandoned ;  and  it  may  now  be  considered 
the  settled  doctrine  of  the  equity  courts  of  England  that  the 
engagements  and  contracts  of  a  married  woman  are  to  be  re- 
garded as  debts,  and  that  her  property  so  held  is  liable  to  the 
payment  of  them,  whether  the  contract  be  expressed  in  writ- 
ing or  not ;  and  all  the  more  so,  if  she  lives  apart  from  her 
husband,  and  the  debt  could  only  be  satisfied  from  her  sepa- 
rate property.^  "  Inasmuch  as  her  creditors  have  not  the 
means  at  law  of  compelling  payment  of  those  debts,"  says 
Lord  Cottenham,  "  a  court  of  equity  takes  upon  itself  to  give 
effect  to  them,  not  as  personal  liabilities,  but  by  laying  hold  of 
the  separate  property,  as  the  only  means  by  which  they  can 
be  satisfied."  ^ 

But  while  the  contract  for  payment  of  money,  made  by  a 

married  woman  having  separate  estate,  is  called  a  debt,  it  is 

only  a  debt  sub  modo,  when  compared  with  the  debt  of 

*  222    a  man  *or  an  unmarried  woman.    It  cannot  be  enforced 

against  her  at  law  ;    and  Lord  Cottenham's  language 
indicates  that  it  is  enforceable  in  equity,  not  on  the  ground 

1  Biscoe  V.  Kennedy,  1  Bro.  C.  C.  17  ;  Hiilme  v.  Tenant,  1  Bro.  C.  C.  16. 

2  See  Murray  v.  Barlee,  per  Lord  Brougham,  3  Myl.  &  K.  210 ;  Bullpin  v. 
Clarke,  17  Ves.  865;  Stuart  v.  Lord  Kirkwall,  3  Madd.  387  ;  Master  v.  Fuller, 

1  Ves.  Jr.  513  ;  Gaston  v.  Frankura,  2  De  G.  &  Sm.  561 ;  s.c.  on  appeal,  16  Jur. 
507  ;  Peachey  Mar.  Settl.  270,  and  cases  cited. 

3  Field  V.  Sowle,  4  Kuss.  112. 

*  Peachey  Mar.  Settl.  271,  272,  and  cases  cited  ;  Vaughan  v.  Vanderstegen, 

2  Drew.  184;  Owens  v.  Dickenson,  Craig  &  Phil.  48;  Macq.  Hus.  &  Wife,  303; 
Picard  v.  Hine,  L.  R.  5  Ch.  274.  But  see  Newcomen  v.  Hassard,  4  Ir.  Ch.  274; 
1  Sugd.  Pow.  206,  7th  ed. 

6  Owens  V.  Dickenson,  Craig  &  Phil.  48. 

[234] 


WIFE'S  DOMINION  OVER  HER  SEPARATE  ESTATE.      *  222 

that  she  incurred  a  personal  obligation,  but  because  there  is 
property  upon  which  the  obligation  may  be  fastened.  Hence 
it  is  said  that  there  can  in  no  case  be  a  decree  against  a  mar- 
ried woman  in  personam  ;  the  proceedings  are  simply  against 
her  separate  property  in  rem}  And  though  she  is  a  necessary 
party  to  a  suit  to  enforce  payment  against  her  separate  estate, 
yet,  if  that  estate  be  held  in  trust  for  her  separate  use,  the 
suit  must  be  against  the  trustees  in  whom  that  property  is 
vested ;  the  decree  in  such  case  being  rendered,  not  against 
her,  but  against  the  trustees,  to  compel  payment  from  her 
separate  estate.  Moreover,  if  the  wife  survive  her  husband, 
although  the  creditors  may  still  enforce  their  demand  in  equity 
against  her  separate  estate,  yet  her  person  and  her  general 
property  remain  as  completely  exempted  from  liability  at  law 
and  in  equity,  as  in  other  cases  of  debts  contracted  by  her 
during  coverture.^ 

Here,  however,  the  fictions  of  equity  create  a  new  practical 
difficulty.  For  if  the  wife  be  a  feme  sole  at  all,  with  refer- 
ence to  her  sejDarate  property,  must  she  not  have  power  to 
bind  herself  personally  ?  In  Stead  v.  Nelson,  a  husband  and 
wife  undertook,  for  valuable  consideration,  by  writing  under 
their  hands,  to  execute  a  mortgage  of  her  separate  estate. 
The  husband  died.  Lord  Langdale  held  that  the  surviving 
wife  was  bound  by  the  agreement,  and  ordered  "a  specific  per- 
formance.^ Certainly  the  ground  of  this  decision  must  have 
been  that  the  obligation  was  not  upon  her  property  alone,  but 
upon  her  person.  At  the  same  time,  it  is  readily  admitted 
that  there  are  reasons  of  jDolicy  why  the  wife  should  be 
exempted  from  personal  execution  *  during  coverture.  *  223 
This  latter  view  accords  with  the  common-law  practice 

i  Hulme  V.  Tenant,  1  Bro.  C.  C.  16  ;  Ashton  v.  Aylett,  1  Myl.  &  Cr.  Ill ;  Macq. 
Hus.  &  Wife,  304 ;  Teachey  Mar.  Settl.  273.  But  see  Keogli  v.  Cathcart,  11  Ir. 
Ch.  285. 

2  Vaughan  v.  Vanderstegen,  2  Drew.  184;  Peachey  Mar.  Settl.  273;  Macq. 
Hus.,  &  Wife,  304.  But  her  promissory  note,  given  during  coverture  so  as  to 
bind  her  separate  estate,  is  a  good  consideration  for  anotiier  promissory  note 
given  after  lier  husband's  deatli  for  a  balance  then  due,  tliough  the  former  note 
be  barred  by  the  statute  of  limitations.  Latouche  v.  Latouche,  3  Hurl.  &  Colt. 
576. 

3  2  Beav.  245;  Macq.  Hus.  &  Wife,  304. 

[  235  ] 


*  223  HUSBAND   AND   WIFE. 

in  analogous  cases.^  Perhaps,  then,  the  more  consistent  view 
of  the  subject  would  be  that  the  wife  incurs  a  personal  obli- 
gation, morally  and  legall}'-,  on  such  contracts,  express  or 
implied,  as  she  may  make  during  coverture  with  reference  to 
her  separate  property ;  but  that  the  general  disabilities  of 
coverture  interpose  obstacles  to  the  enforcement  of  remedies 
by  a  creditor,  which  obstacles  the  courts  of  equity  feel  bound 
to  regard ;  and  hence  that  they  confine  the  remedies  to  her 
separate  estate,  upon  the  faith  of  which,  it  may  reasonably  be 
presumed,  the  creditor  chose  to  rely. 

Property  limited  to  such  uses  as  a  married  woman  shall 
appoint  is  not  separate  estate.  There  is  a  difference  between 
property  subject  merely  to  her  power  of  appointment,  and 
property  settled  to  her  sole  and  separate  use.  In  the  former 
instance  she  may  dispose  of  the  estate  by  executing  an  instru- 
ment according  to  the  strict  letter  of  her  authority.  In  the 
latter,  she  is  invested  with  a  beneficial  interest  and  enjoy- 
ment, however  restricted  may  be  the  dominion  allowed  her 
by  the  donee.  A  power  of  appomtment  is  much  the  same  as 
any  other  special  power,  and  on  such  a  principle,  not  upon 
the  ground  that  she  is  a  feme  sole  as  to  the  propert}',  the 
courts  both  of  equity  and  of  law  recognize  her  right  to  exe- 
cute without  joining  her  husband.  And  indeed  in  some  cases, 
under  her  trust,  she  may  pass  the  absolute  property  in  a 
chattel  by  gift  and  manual  delivery  without  writing  at  all, 
because  she  has  been  so  empowered.  She  cannot  charge  the 
property  with  her  debts  or  affect  it  by  her  general  contracts, 
any  more  than  she  can  other  property  which  is  not  hers.^  On 
the  other  hand,  the  wife's  disposition  of  her  separate  estate 
does  not  arise  from  the  exercise  of  a  jDower,  but  it  is  the  ex- 
ercise of  a  dominion  over  that  estate,  unknown  to  the  common 
law  and  created  by  a  court  of  equity,  whose  rules  provide  not 
only  for  her  dominion  over  it,  but  also  for  the  rights  of  those 
in    favor   of  whom  that  dominion  shall  be  exercised.^     A 

1  Sparkes  v.  Bell,  8  B.  &  C.  1. 

'-i  Vaughan  v.  Vanderstegeu,  2  Drew.  378.  See  Farrington  v.  Parker,  L.  R. 
4Eq.  IIG. 

3  Digby  V.  Irvine,  6  Ir.  Ch.  149.     See  Peachey  Mar.  Settl.  27G ;  Brown  v. 

[236] 


WIFE'S  DOMnaON  OVER  HER  SEPARATE  ESTATE.     *  224 

*  power  of  appointment  given  to  a  married  woman  and    *  224 
a  trust  for  her  separate  use  are  then  perfectly  distinct, 
even  when  they  affect  succeeding  interests  in  the  same  prop- 
erty. 

The  separate  estate  of  married  women  may  be  affected,  and 
their  rights  barred,  by  active  participation  in  breaches  of 
trust.^  But  on  the  other  hand,  to  preclude  the  wife  from  the 
right  to  relief  simply  because  she  has  improperly  permitted 
her  husl)and  to  receive  the  trust  funds,  would  be  to  defeat 
the  very  purpose  for  which  the  trust  was  created  ;  namely, 
the  protection  of  the  wife  against  her  husband.  Hence,  ac- 
cording to  the  latest  and  best  authorities,  the  court  must  be 
satisfied  that  the  husband  has  not  in  any  degree  influenced 
her  acts  and  conduct,  before  it  holds  her  separate  estate  to  be 
affected  ;  and  this  upon  the  most  jealous  investigation.^  But 
a  married  woman,  one  of  several  devisees  in  trust  for  sale, 
cannot  bind  herself  to  convey-  ;  and  upon  such  a  contract  on 
her  part  specific  performance  will  not  be  enforced  against 
her.^ 

As  a  general  rule,  it  may  be  laid  down  that  wherever  a 
married  woman,  having  property  settled  to  her  separate  use, 
enters  into  any  contract  by  which  it  clearly  appears  that  she 
intends  to  create  a  debt  as  against  herself  personally,  it  will 
be  assumed  that  she  intended  that  the  money  should  l)e  paid 
out  of  the  only  property  by  which  she  could  fulfil  the  engage- 
ment.* Thus,  in  a  case  before  Lord  Brougham,  the  question 
came  up  for  the  first  time,  whether  a  married  woman  could 
bind  her  separate  estate  for  legal  expenses  incurred  by  her, 

Bamford,  1  Ph.  620  ;  Sliattock  i-.  Sliattock,  L.  R.  2  Eq.  182;  Hancliett  v.  Bris- 
coe, 22  Beav.  496. 

1  Peacliey  Mar.  Settl.  276  ;  Ryder  v.  Bickerton,  3  Swanst.  80,  n.  ;  Lord  IMont- 
ford  V.  Lord  Cadogan,  19  Ves.  G35. 

^  Per  Sir  Geo.  Turner,  Huglies  v.  Wells,  9  Hare,  773.     And  see  authorities, 
supra ;  Kellaway  v.  Johnson,  5  Beav.  319  ;  Cocker  v.  Quayle,  1  Russ.  &  M.  636 ; 
Brewer  v.  Swirles,  2  Sin.  &  Gif.  219.     Covtra,  Whistler  v.  Newman,  4  Ves.  I2y, 
doubted  in  Parkes  v.  White,  11  Ves.  223. 
■     3  Avery  v.  Griffin,  L.  R.  6  Eq.  606. 

*  Earl  V.  Ferris,  19  Beav.  69. 

[237  ] 


*  224  HUSBAND  AND  WIFE, 

upon  her  retainer  and  promise  to  pay,  there  having  been  no 
reference  to  her  sej^arate  estate  in  the  agreement ;  and  it  was 
held  that  she  could,  and  that  the  bill  must  be  paid  from  her 
separate  estate.^  But  on  the  other  hand,  in  contracts  where 
the  husband  is  the  interested  party,  the  court  will  not 

*  225    make  the  wife's  separate  property  *  liable,  if  that  fact 

be  made  plain ;  notwithstanding  she  may  have  had 
some  agency  in  the  transaction.^  Nor  is  her  separate  estate 
hable  for  the  expenses  of  Htigation  incurred  for  the  children 
as  her  husband's  agent.^ 

We  need  hardly  add,  that  a  married  woman,  having  sep- 
arate estate,  without  a  clause  restraining  her  right  of  disposi- 
tion, may  charge  and  encumber  it  in  any  manner  she  chooses, 
either  as  security  for  her  husband's  debts,  her  own,  or  those 
of  a  stranger  ;  provided  she  does  not  appear  to  have  been 
imposed  upon  in  the  transaction.  And  if  her  property  is  in 
the  hands  of  trustees,  they  are  bound  to  fulfil  her  engage- 
ment.* And  where  she  mortgages  it,  the  court  will  regard 
the  true  nature  of  the  transaction.^ 

A  married  woman  may  bind  the  corpus  of  her  separate 
property  by  her  compromise  of  a  suit  which  she  has  instituted 
by  her  next  friend.^  She  may  also  contract  for  the  purchase 
of  an  estate,  and  even  though  the  contract  makes  no  reference 
to  her  separate  property  it  will  be  bound  by  her  agreement^ 
So  her  contract  to  sell  or  mortgage  her  life-interest  in  her 
separate  estate  will  be  specifically  enforced  against  her.* 
Both  she  and  her  husband  must  be  parties  to  a  suit  concern- 
ing her  separate  property.^     And  it  is  held  that  the  husband, 

1  Murray  v.  Barlee,  3  Myl.  &  K.  209.     And  see  "Waugh  v.  Waddell,  16  Beav. 
621 ;  Bolden  v.  Nicholay,  3  Jur.  n.  s.  884. 
-  TuUett  V.  Armstrong,  4  Beav.  319. 
3  In  re  Pugh,  17  Beav.  336. 

*  Clerk  V.  Laurie,  2  Hurl.  &  Nor.  199  ;  Peachey  Mar.  Settl.  292.  See  Homer 
V.  Wheelwright,  2  Jur.  s.  8.  367. 

*  Gray  v.  Dowman,  6  W.  R.  671.  6  Wilton  v.  Hill,  25  L.  J.  Eq.  156. 

'  Dowling  V.  Maguire,  Lloyd  &  Goold,  temp.  Plunket,  1 ;  Crofts  v.  Middleton, 
2  Kay  &  Johns.  194,  reversed  on  appeal. 

8  Wainwright  v.  Hardisty,  2  Beav.  363. 

9  Holmes  v.  Penney,  3  Kay  &  Johns.  91.  And  see  Peachey  Mar.  Settl.  293- 
296,  and  cases  cited  ;  Macq.  Hus.  &  Wife,  297. 

[  238] 


WIFE'S  DOMINION  OVER  ITER  SEPARATE  ESTATE.     *  225 

by  making  her  a  party  in  respect  to  her  separate  estate,  ad- 
mits it  to  be  such.^ 

The  rule  as  to  the  wife's  power  to  charge  her  separate  estate 
for  her  debts  is  briefly  and  clearly  stated  in  a  very  recent 
case,  to  this  effect :  If  a  married  woman,  having  separate 
property,  enters  into  a  pecuniary  engagement,  whether 
by  ordering  goods,  *  or  otherwise,  which  (if  she  were  *  226 
a  feme  sole}  would  constitute  her  a  debtor,  and  in  en- 
tering into  such  engagement  she  purports  to  contract,  not  for 
her  husband,  but  for  herself,  and  on  the  credit  of  her  separate 
estate,  and  it  was  so  intended  by  her,  and  so  understood  by 
the  person  with  whom  she  is  contracting,  that  constitutes  an 
obligation  for  which  the  person  with  whom  she  contracts  has 
the  right  to  make  her  separate  estate  liable ;  and  the  ques- 
tion whether  the  obligation  was  contracted  in  this  manner 
must  depend  upon  the  facts  and  circumstances  of  each  par- 
ticular case.^ 

A  married  woman,  save  so  far  as  she  is  restrained  from  an- 
ticipation by  the  terms  of  the  trust,  may  bestow  her  separate 
property  upon  her  husband  by  virtue  of  her  right  of  disposal ; 
although  at  common  law  no  such  thing  is  known  as  a  gift 
between  husband  and  wife.  She  may  likewise  transfer  it  to 
him  for  a  valuable  consideration.^  But  acts  of  this  sort  are  very 
closely  scrutinized ;  and  undue  influence  on  the  part  of  the  hus- 
band, or  the  fraud  of  both  husband  and  wife  upon  creditors  of 
either,  will  often  explain  the  motive  of  such  transactions,  and 
suffice  for  setting  them  aside  in  equity.  When  the  wife  has 
made  a  gift  to  her  husband  she  will  be  precluded,  after  his 
death,  from  charging  his  estate  with  what  he  so  received.'* 
If  she  allows  him  to  take  her  separate  property,  without 
making  a  claim  to  it,  or  permits  him  to  receive  her  separate 
income  and  apply  it  to  the  wants  of  the  family,  she  will  in 

1  Earl  V.  Ferris,  19  Beav.  69. 

2  Ter  Kindersley,  V.  C,  Matthewman's  Case,  L.  R.  3  Eq.  787.  In  this  case 
the  wife's  corporation  shares  were  held  liable  to  assessment.  And  see  Johnson 
V.  Gallagher,  3  De  G.,  F.  &  J.  494. 

3  Lyn  V.  Ashton,  i  Russ.  &  M.  190 ;  Macq.  IIus.  &  Wife,  297. 

*  Paulet  V.  Delavel,  2  Ves.  Sen.  6G3  ;  2  Roper  Hus.  &  Wife,  220  ;  1  Madd.  Ch. 
472. 

[239] 


♦226  HUSBAND  AND  WIFE. 

general  be  presumed  to  have  assented  to  the  arrangement.^ 
But  if  the  circumstances  do  not  warrant  the  inference  that 
the  wife  has  assented  to,  or  acquiesced  in,  the  husband's  re- 
ceiving her  income,  or  in  his  mode  of  aj)plying  it,  she  will  be 
entitled  to  reimbursement  out  of  his  estate.^  So  long  as  her 
transfer  of  separate  property  to  her  husband  remains  incom- 
plete, she  can  revoke  her  consent  to  the  gift.^  While  the 
property  continues  to  be  for  her  sole  and  separate  use,  she  is 
entitled  to  the  same  protection  against  her  husband's  inter- 
ference that  a  single  woman  would  have  against  a  stranger, 
and  this  right  passes  to  her  assignee  under  any  assignment 
excluding  her  husband's  dominion  which  she  may  have  right- 
fully made.'^  And  where  a  wife  joins  her  husband  in  encum- 
bering her  separate  estate  partly  for  his  benefit  and  parth'  for 
her  own,  it  will  not  readily  be  presumed  that  she  designed  to 
give  the  whole  of  the  proceeds  to  him  ;  for  which  reason  the 
trustee  employed  by  them  should  not  treat  the  money  as  that 

of  the  husband  alone. ^ 
*  227        *  By   the    ordinary   rule    of  the    English   chancery 

courts  a  wife  is  precluded  from  recovermg  the  arrears 
of  income  on  her  separate  estate  for  more  than  a  year,  upon 
the  ground  of  a  supposed  gift  to  her  husband.^ 

Second.  In  this  country  whenever  the  wife's  separate  use  has 
been  admitted  as  a  doctrine  of  equity,  independently  of  stat- 
ute, her  right  of  dominion  has  also  been  recognized.  The 
celebrated  New  York  case  of  Jaques  v.  Tlie  Methodist  Episcopal 
Church,  which  may  justly  be  placed  foremost  among  the  very 
few  important   American   chancery  decisions   of  this  class, 

1  Square  i'.  Dean,  4  Bro.  C.  C.  326;  Beresford  v.  Archbishop  of  Armagh,  13 
Sim.  643;  Bartlett  v.  Gillard,  3  Russ.  149;  Carter  v.  Anderson,  3  Sim.  370. 

2  Parker  v.  Brooke,  9  Ves.  683 ;  Macq.  Hus.  &  Wife,  298. 

3  Penfold  V.  Mould,  L.  R.  4  Eq.  562. 

4  Allen  V.  Walker,  L.  R.  5  Ex.  187. 

5  Jones  V.  Cuthbertson,  L.  R.  7  Q.  B.  218. 

^  Peachey  Mar.  Settl.  291,  and  cases  cited ;  Rowley  v.  Unwin,  2  Kay  & 
Johns.  142;  Arthur  v.  Arthur,  11  Ir.  Ch.  513.  And  see  Dalbiac  v.  Dalbiac,  16 
Ves.  116  ;  Fleet  v.  Perrins,  L.  R.  3  Q.  B.  536 ;  Parker  v.  Brooke,  9  Ves. 
583  ;  Caton  v.  Rideout,  1  Mac.  &  Gord.  .599 ;  Beresford  v.  Archbishop  of  Armagh, 
13  Sim.  643  ;  Howard  v.  Digby,  2  CI.  &  Fin.  634 ;  Symes  v.  Lee,  26  L.  J.  Eq. 
665. 

[240] 


WIFE'S  DOMINION  OVER  HER  SEPARATE  ESTATE.     *  227 

established  not  only  that  a  feme  covert^  with  respect  to  her 
separate  estate,  was  to  be  regarded  in  equity  as  a  feme  sole, 
so  that  she  might  dispose  of  it  without  the  assent  and  con- 
currence of  her  trustee,  unless  specially  restrained  by  the 
instrument  under  which  it  had  been  acquired  —  a  position 
not  likely  to  be  disputed  at  this  dnj ;  but,  furthermore,  that 
though  a  particular  mode  of  disposition  was  specifically 
pointed  out  in  the  instrument,  it  would  not  preclude  the  wife 
from  adopting  any  other  mode  of  disposition  unless  she  was 
by  express  language  specially  restrained  to  that  particular 
mode.i  In  this  latter  doctrine  Chancellor  Kent  (whose  judg- 
ment in  the  lower  court  had  been  reversed)  did  not  concur : 
adopting  the  more  conservative  view  with  reference  to  such 
restrictions.  The  distinction  is  rather  a  nice  one,  and  suc- 
cessive American  decisions  in  other  States  have  generally 
sustained  the  Chancellor's  views  ;  but  the  cases  are,  on  the 
whole,  conflicting.^ 

*  In  the  exercise  of  her  right  of  dominion  the  wife  *  228 
may  also,  unless  specially  restrained  by  the  trust,  bestow 
her  separate  property  upon  her  husband,  give  him  the  use 
and  income  thereof,  or  bind  it  for  his  debts.^  It  is  also  well 
settled,  both  under  our  married  women's  acts  and  indepen- 
dently of  them,  that  a  married  woman  may  execute  a  mort- 
gage jointly  with  her  husband  to  secure  his  debts :  in  which 
case  she  is  to  be  regarded  as  his  surety ;  and  this  applies  to 

1  17  Johns.  548;  Methodist  Episcopal  Church  v.  Jaques,  1  Johns.  Ch.  450; 
3  ib.  77. 

2  See  Tullett  v.  Armstrong,  referred  to  supra,  for  the  English  doctrine.  For 
American  authorities,  see  2  Kent  Com.  165,  166,  and  cases  cited  in  last  edition  ; 
Shipp  V.  Bowman,  5  B.  Monr.  163  ;  Tarr  v.  Williams,  4  Md.  Ch.  68  ;  Nix  v.  Brad- 
ley, 6  Ricli.  Eq.  53;  Wylly  v.  Collins,  9  Geo.  233  ;  Doty  v.  Mitchell,  9  Sm.  &  M. 
435;  Morgan  o.  Elam,  4  Yerg.  375;  Ewing  v.  Smith,  3  Desaus.  417;  McClintic 
V.  Ocheltree,  4  W.  Va.  249  ;  Kimm  v.  Weippert,  46  Mis.  532;  Lancaster  v.  Dolan, 
1  Rawle,  231 ;  Harris  v.  Harris,  7  Ired.  Eq.  Ill ;  Hume  v.  Hord,  5  Gratt.  374; 
Hicks  V.  Johnston,  24  Geo.  194  ;  Andrews  v.  Jones,  32  Miss.  274  ;  Leaycraft  v. 
Hedden,  3  Green  Ch.  512 ;  Penn.  Co.  v.  Foster,  35  Penn.  St.  134 ;  Ciiew  v. 
Beall,  13  Md.  348.  The  clause  of  restraint  upon  anticipation  does  not  seem  to 
have  been  applied  much  in  American  cases  of  tliis  sort,  if  at  all. 

3  2  Kent  Com.  Ill,  and  cases  cited  ;  2  U.  S.  Eq.  Dig.  Husband  and  Wife,  18 ; 
Dallam  v.  Walpole,  Pet.  C.  C.  116 ;  Ciiarles  v.  Coker,  2  S.  C.  n.  s.  123.  He  may 
be  purchaser  at  a  sale  properly  made  under  order  of  chancery,  tiiougli  the  trus- 
tee of  his  wife.    Norman  v.  Norman,  6  Bush,  495. 

16  [  241  ] 


*  228  HUSBAND   AND  WIFE. 

lands  held  in  her  right,  whether  conveyed  to  her  separate  use 
or  not.^  And  her  separate  estate  will  be  bound  by  any  debt 
properly  contracted  by  her,  even  though  her  husband  should 
be  the  creditor .^ 

So,  too,  she  may  bind  her  separate  estate  in  person,  or  by 
her  agent,  without  the  assent  of  her  trustee,  if  the  instru- 
ment creating  the  trust  contains  no  restriction  upon  her 
power  ;  and  the  trustee  will  be  bound  by  her  exercise  of 
dominion,  so  far  as  concerns  the  estate  in  his  hands.^  But  if 
the  instrument  requires  the  written  approval  of  the  trustee 
expressed  in  a  certain  manner,  that  requirement  must  be 
complied  with  to  make  even  the  joint  conveyance  of  husband 
and  wife  effectual.^ 

A  married  woman  may,  by  her  contracts,  bind  her  separate 

property,  and  it  is  sufficient  in  such  cases  that  there  was  an 

intention  to  charge  her  separate  estate.     By  contracting  a 

debt  during  coverture,  she  furnishes  a  presumption  of  that 

intention.^     But  where  the  debt  is  contracted  before 

*  229    marriage  the  *  remedy  against  the  separate  estate  of 

the  wife  is  suspended  during  marriage.^  In  general, 
it  is  to  be  observed  that  the  American  equity  doctrine  of  the 
wife's  power  to  charge  her  separate  estate,  independently  of 


*  Deraarest  i>.  Wynkoop,  3  Johns.  Ch.  129  ;  Van  Home  v.  Everson,  13  Barb, 
526 ;  Vartie  v.  Underwood,  18  Barb.  561 ;  Bartlett  v.  Bartlett,  4  Allen,  440 ; 
Young  V.  Graff,  28  111.  20 ;  Watson  v.  Tlmrber,  11  Mich.  457  ;  Eaton  v.  Nason, 
47  Me.  132 ;  Spear  v.  Ward,  20  Cal.  659 ;  Ellis  v.  Kenyon,  25  Ind.  134 ;  Green 
V.  Scranage,  19  Iowa,  461 ;  Wolff  v.  Van  Meter,  19  Iowa,  134.  And  see  Leavitt 
V.  Peel,  25  N.  Y.  474. 

*  Gardner  v.  Gardner,  7  Paige,  112.  She  may  anticipate  and  encumber  rents 
settled  in  trust  for  her  separate  use.     Cheever  v.  Wilson,  9  Wall.  108. 

3  North  American  Coal  Co.  v.  Dyett,  7  Paige,  1 ;  Gibson  v.  Walker,  20  N.  Y. 
476.  And  see  Lewis  v.  Harris,  4  Met.  (Ky.)  353.  But  see  Noyes  v.  Blakeman, 
2  Seld.  567 ;  8.  c.  8  Sandf.  531,  as  to  the  effect  of  New  York  statute  relative  to 
the  declaration  of  trusts. 

*  Gelston  v.  Frazier,  26  Md.  329.  See  as  to  lapse  of  time,  Frazier  v.  Gelston, 
85  Md.  298. 

5  2  Kent  Com.  164,  and  cases  cited ;  Fire  Ins.  Co.  v.  Bay,  4  Comst.  9 ;  Van- 
derheyden  v.  Mallory,  1  Comst.  452;  2  U.  S.  Eq.  Dig.  Husband  and  Wife,  19; 
Dallas  V.  Heard,  32  Geo.  604 ;  Withers  v.  Sparrow,  66  N.  C.  129. 

6  Vanderheyden  v.  Mallory,  1  Comst.  452.  But  see  Dickson  v.  Miller,  US. 
&  M.  694. 

[242] 


WIFE'S  DOMINION  OVER  HER  SEPARATE  ESTATE.     *  229 

the  married  women's  acts,  has  fluctuated  somewhat,  as  have 
likewise  the  English  cases. 

But  the  doctrine  of  the  wife's  dominion  over  her  separate  estate 
is  at  this  day  more  generally  asserted  with  reference  to  the  mar- 
ried women's  acts ;  and  some  of  the  later  cases  show  important 
variations  from  the  equity  rule,  as  we  shall  proceed  to  notice. 

The  late  case  of  Yale  v.  Dederer  is  an  important  one,  as  es- 
tabhshing  in  a  leading  American  State,  under  cover  of  legis- 
lative policy,  a  new  doctrine,  at  variance  with  that  of  the 
modern  English  equity  courts,  and  apparently  contrary  to  its 
own  precedents.^  It  appeared  that  the  husband  had  offered 
his  promissory  note  to  the  plaintiff  in  payment  of  certain  cows 
which  he  wished  to  purchase  ;  that  the  plaintiff,  doubting  his 
solvency,  required  him  to  procure  his  wife  to  unite  in  a  note 
with  him.  This  he  did.  The  note  was  subsequently  renewed. 
At  the  time  of  signing  the  note  Mrs.  Dederer  remarked  that 
if  her  husband  was  not  able  to  pav  it,  she  was.  It  was  estab- 
lished that  she  had  sufficient  real  Estate,  held  in  her  own  right, 
to  satisfy  the  claim  ;  and  the  judge,  who  heard^the  evidence, 
stated  in  his  finding  that  "  the  defendant,  Mrs.  Dederer,  in- 
tended to  charge,  and  did  expressly  charge,  her  separate 
estate  for  the  pa3'^ment  of  the  note."  The  Court  of  Appeals 
nevertheless  held  that  Mrs.  Dederer  was  a  mere  surety  for 
her  husband  ;  and  that  though  it  was  her  intention  to  charge 
her  separate  estate,  such  intention  did  not  take  effect.  The 
principle  of  the  decision  was  this  :  that,  in  order  to  create  a 
charge  upon  the  separate  estate  of  a  married  woman,  the  in- 
tention to  do  so  must  be  declared  in  the  very  contract  which 
is  the  foundation  of  the  charge,  or  the  consideration 
must  be  obtained  for  the  *  direct  benefit  of  the  estate  *  230 
itself.  Later  New  York  decisions  follow  the  rule  of 
this  case,  and  require  a  distinct  written  obligation  to  bind  the 
wife  where  the  debt  is  not  contracted  for  the  direct  benefit  of 
the  estate. 2 

I  Yale  V.  Dederer,  18  N.  Y.  2G5 ;  s.  c.  22  N.  Y.  450.  The  principle  in  these 
two  cases  differs. 

'i  White  V.  McNett,  33  N.  Y.  371 ;  Ledlie  v.  Vrooman,  41  Barb.  lO'J  ;  White  v. 
Story,  43  Barb.  124  ;  Merchants'  Bank  v.  Scott,  59  Barb.  G41.  , 

[  243  ] 


*  230  HUSBAND  AND   WIFE. 

But  it  does  not  appear  that  this  doctrine  has  found  favor 
in  all  the  other  States.  In  Wisconsin,  the  decision  of  Tale 
V.  Dederer  is  unsparingly  condemned.^  And  the  more  com- 
mon rule  in  this  country  still  seems  to  be  —  though  we  may  not 
regard  the  principle  as  by  any  means  a  settled  one  —  that  the 
wife's  separate  estate  will  be  held  liable  for  all  debts  which  she 
by  implication  or  expressly,  by  writing  or  parol,  charges  there- 
on, even  if  not  contracted  directly  for  the  benefit  of  the  estate.^ 
For  the  wife's  debts  are  charged  in  justice  upon  her  separate 
estate,  not  because  of  her  power  to  make  a  valid  written  or 
verbal  contract,  but  because  it  is  right  that  her  debts  should 
be  f)aid.3     The  latest  New  York  cases  accede  to  the  position 

1  Todd  V.  Lee,  15  Wis.  365. 

2  Pentz  V.  Simonson,  2  Beasl.  232  ;  Grapengether  v.  Fejervary,  9  Iowa,  1G8  ; 
Rogers  v.  Ward,  8  Allen,  387 ;  Mayo  v.  Hutchinson,  57  Me.  346  ;  Major  v. 
Symmes,  19  Ind.  117;  Oakley  i'.  Pound,  1  McCart.  178;  Miller  v.  JS^ewton,  23 
Cal.  554  ;  2  Kent  Com.  164 ;  2  Story  Eq.  Juris.  §§  1398,  1401.  See  Koontz  v. 
Nabb,  16  Md.  549 ;  Knox  v.  Jordan,  5  Jones  Eq.  175 ;  McFaddin  v.  Crumpler, 
20  Tex.  374.  In  Rhode  Island,  a  narrow  rule  is  adopted.  Cozzens  v.  Whitney, 
3  R.  I.  79. 

^  Cummins  c.  Sharpe,  21  Ind.  331 ;  Pentz  v.  Simonson,  2  Beasl.  232 ;  Glass 
V.  Warwick,  40  Penn.  St.  140.  But  see  Maclay  v.  Love,  25  Cal.  367  ;  Hanly  v. 
Downing,  4  Met.  (Ky.)  95. 

For  the  Ohio  rule,  which  regards  the  wife's  intention  with  liberality,  see 
Phillips  V.  Graves,  20  Oliio  St.  371.  The  New  Jersey  rule  appears  to  be  as 
stated  in  the  latest  cases,  substantially  like  that  of  New  York,  except,  perhaps, 
as  to  the  extent  of  legal  remedies.  It  is  expressed  in  detail  as  follows  :  (1st.) 
The  debts  of  a  married  woman,  with  separate  property,  when  contracted  by 
her  for  its  benefit,  or  for  her  own  use,  on  the  credit  of  that  estate,  will  be 
charged  by  a  court  of  equity  upon  that  separate  estate,  and  payment  enforced 
out  of  it.  (2d.)  Such  debts  are  not  a  lien  upon  her  separate  estate  until  made 
so  by  a  decree  of  a  court  of  equity,  and  the  lien  is  by  virtue  of  the  decree.  (3d.) 
A  married  woman  cannot  charge  her  separate  estate  by  an  appointment  in 
writing ;  but  can  only  convey  or  charge  it  by  deed  duly  executed  with  her  hus- 
band and  acknowledged,  save  in  certain  cases  where  she  and  her  husband  live 
apart.  And  here  it  appears  that  while  her  mortgage  is  void  in  which  the  hus- 
band does  not  join,  equity  will  charge  the  mortgage  debt  upon  her  separate 
property  generally  where  the  debt  was  contracted.for  the  benefit  of  that  property. 
Armstrong  v.  Ross,  5  C.  E.  Green,  109.  If  she  lives  apart  from  her  husband, 
her  separate  property  will  be  charged  readily  with  debts  contracted  for  her  own 
benefit.  Johnson  v.  Cummins,  1  C.  E.  Green,  97.  And  see  Perkins  v.  Elliott, 
7  C.  E.  Green,  127.  In  Missouri,  it  is  held  immaterial  whether  the  wife's  debt 
was  evidenced  by  a  written  instrument  or  parol  promise.  Miller  v.  Brown,  47 
Mis.  505.  Here  the  wife  was  charged  for  goods  bouglit  on  her  credit  for  articles 
apparently  too  expensive  to  be  deemed  necessaries  in  the  ordinary  sense.  The 
latest  Indiana  rule  appears  to  be  to  limit  the  liability  of  the  wife's  separate  estate 

[244] 


WIFE'S  DOMINION  OVER  HER  SEPARATE  ESTATE.      *  230 

that  while  a  married  woman  may  not  be  bound  personally  by 
her  contract,  the  rule  under  the  statutes  and  independently 
of  them  is,  that  when  services  are  rendered  her  by  her  pro- 
curement, or  she  contracts  a  debt  generally  on  the  credit  and 
for  the  benefit  of  her  separate  estate,  there  is  an  implied 
agreement  and  obligation  springing  from  the  nature  of  the 
consideration,  which  the  courts  will  enforce  by  charging  the 
amount  on  her  separate  property  as  an  equitable  lien.^  And 
to  this  extent  we  occupy  sure  ground. 

American  decisions  under  the  married  women's  acts  often 
manifest  a  disposition  to  charge  a  wife's  engagements  upon 
her  separate  estate  rather  than  against  the  husband.  Thus  in 
Connecticut,  while  it  is  admitted  that  the  wife's  contracts 
can  only  bind  her  property  and  not  her  person,  it  is  held  that 
a  promissory  note,  signed  by  her  husband  in  her  name,  and 
as  her  trustee,  and  with  full  authority  to  act  in  the  premises, 
which  is  negotiated  on  the  faith  of  her  credit  and  not  her 
husband's,  cannot  be  enforced  against  him  personally,  though 
she  should  afterwards  be  found  irresponsible.^  Doubtless  a 
married  woman  may  become  bound  for  family  necessaries  con- 
tracted on  the  faith  of  her  separate  estate,  whether  her  hus- 
band be  insolvent  or  not ;  so  long  as  neither  he  nor  his  credit 
were  considered  in  the  transaction  between  herself  and  the 
store-keeper ;  and  her  separate  estate  is  answerable  accord- 
ingly in  a  suit  against  her,  under  many  statutes.^  In  some 
States,  however,  this  rule  would  be  found  affected  by  legisla- 


for  lier  debts  to  cases  wliere  she  intended  to  deal  with  lier  separate  estate,  and 
the  contract  was  reasonably  adapted  to  better  her  separate  estate.  Kantrowitz 
V.  Prather,  31  Ind.  92 ;  Hasheagan  v,  Specker,  36  Ind.  413.  See  further,  Mc- 
Gavock  V.  Whitfield,  45  Miss.  452;  McCormick  v.  Holbrook,  22  Iowa,  487. 
A  married  woman  contracting  for  services  relating  to  her  separate  estate,  and 
tlien  becoming  a  widow,  may  be  sued  while  discovert,  on  tlie  contract.  King  v. 
Mittalberger,  50  Mis.  182. 

1  Owen  V.  Cawley,  36  N.  Y.  600 ;  Ballin  v.  Dillaye,  37  N.  Y.  35. 

2  Taj  lor  V.  Shelton,  30  Conn.  122.  And  see  Gilbert  v.  Plant,  18  Ind.  308; 
Gunn  V.  Samuel,  33  Ala.  201 ;  Mayer  v.  Galluchat,  6  Rich.  Eq.  1 ;  Catrou  v. 
Warren,  1  Cold.  358 ;  Wyley  v.  Collins,  9  Geo.  228.  See  Black  v.  Bryan,  18 
Tex.  453. 

3  Labaree  v.  Colby,  99  Mass.  559 ;  Davidson  v.  McCandlisli,  69  Penn.  St. 
169;  Campbell  v.  White,  22  Mich.  178;  Craft  v.  Holland,  37  Conn.  491. 

[245] 


*  230  HUSBAND  AND  WIFE. 

tive  restrictions.^     In  New  York,  the  wife  may  be  sued  alone 

for   damages  done  by  trespass  of  her  cattle   straying  from 

her  own  premises  upon  adjoining  land,  although  husband  and 

children  reside  with  her  upon  the  land,  and  both  land 

*  231    and  cattle  are  used  for  support  of  the  family .^   If  *  there 

be  any  good  sense  in  the  rule  that  where  credit  is  once 
given  to  the  wife,  the  husband  will  not  be  liable,  though  the 
articles  purchased  be  a  necessary,  it  is  in  cases  where  the  wife 
has  a  separate  income  or  separate  property  of  her  own  and 
under  her  own  control. 

The  undoubted  right  of  the  wife  on  general  principles  to 
treat  her  husband  as  the  trustee  of  her  separate  property,  has 
given  rise,  under  the  married  women's  acts,  to  perplexing 
questions  as  between  herself  and  his  creditors.  In  New  York, 
her  privileges  in  this  respect  are  carried  very  far  ;  for  she  may 
employ  her  husband  as  her  managing  agent  to  control  her 
property,  without  subjecting  it  to  the  claim  of  his  creditors  ; 
the  application  of  an  indefinite  portion  of  the  income  to  his 
support  does  not  impair  her  title  to  the  property  ;  and  neither 
he  nor  his  creditors  will  acquire  an  interest  in  the  property 
through  his  services  thus  rendered.^  It  seems  to  be  the  well- 
settled  American  doctrine  that  by  working  upon  the  wife's 
lands  the  husband  acquires  no  beneficial  interest  therein 
which  can  be  enforced  in  equity  on  behalf  either  of  himself 
or  his  creditors,  in  absence  of  a  definite  agreement  for  com- 
pensation ;  unless,  possibly,  it  could  be  shown  to  exceed  in 
value  the  cost  of  suj^porting  the  whole  family.*  The  crops 
cannot  be  attached  by  his  creditors.^  Nor  the  betterments, 
buildings,  and  rents.^ 

1  See  Lee  v.  Morris,  3  Bush,  210 ;  Hutchinson  v.  Underwood,  27  Tex.  255 ; 
Miller  v.  Brown,  47  Mis.  504. 

2  Rowe  V.  Smith,  45  N.  Y.  230. 

3  Buckley  v.  Wells,  33  N.  Y.  518 ;  Knapp  v.  Smith,  27  N.  Y.  277. 

*  Buckley  v.  Wells,  ib. ;  Webster  v.  Hildreth,  33  Vt.  457  ;  Cheuvete  v.  Mason, 
4  Greene  (Iowa),  231 ;  Betts  v.  Betts,  18  Ala.  787  ;  Commonwealth  v.  Fletcher, 
6  Bush,  171.  > 

5  Mclntyre  v.  Knowlton,  6  Allen,  565 ;  Lewis  v.  Johns,  24  Cal.  98 ;  Allen  v. 
Hightower,  21  Ark.  316. 

6  White  V.  Hildreth,  32  Vt.  265;  Goss  v.  Cahill,  42  Barb.  310;  Wilkinson  v. 
Wilkinson,  1  Head,  305 ;  Eobinson  v.  Huffman,  15  B.  Monr.  80. 

[246] 


M 


WIFE'S  DOMINION  OVER  HER  SEPARATE  ESTATE.     *2'31 

In  some  States,  the  husband  cannot  dispose  of  his  life- 
interest  in  his  wife's  lands  at  all,  without  the  wife's  assent.^ 
In  Alabama,  the  husband's  rio-hts  as  his  wife's  manacfinor 
attorney  are  declared  not  to  extend  to  binding  her  by  the 
submission  to  arbitration  of  questions  relating  to  the  corpus 
of  her  separate  estate.^  And,  in  general,  if  the  wife's  i^rop- 
erty  is  not  liable  for  her  husband's  debts,  much  less  can  it  be 
made  so  for  his  torts,  without  her  participation.^  But  the 
"  managing  agent "  doctrine  has  its  limits  in  New  York,  as 
elsewhere  ;  and  where  there  is  a  mere  shifting  of  property  from 
husband  to  wife,  and  from  wife  back  to  husband  as  her  man- 
aging agent ;  or  where  the  husband,  doing  business  as  his 
wife's  agent,  obtains  goods  on  credit  under  false  pretences, 
and  then  gets  her  to  make  an  assignment  of  them,  such  an 
artifice  for  evading  his  creditors  is  likely  to  fail.*  Ratification 
of  his  unauthorized  acts  as  attorney  may  be  presvnned  in  some 
instances  by  her  acts  and  conduct ;  but  evidence  of  this 
character  should  be  stronger  than  in  the  ordinary  case  of  an 
agent.^  And  his  declarations  not  made  at  the  time  of  a  trans- 
action, and  disconnected  with  his  act  as  her  agent,  are  not 
admissible  in  evidence  against  her,  even  though  they  might 
be  as  against  himself.^ 

Where  the  question  arises,  then,  whether  the  husband  is 
enjoying  the  wife's  property  by  way  of  gift  from  her,  or  as 
her  managing  attorney,  it  must  be  determined  by  evidence. 
In  either  case  the  advantage  seems  to  be  with  husband  and 
wife  in  all  controversies  with  the  creditor.  The  gen- 
eral rule  still  prevails  *  however  that  money  transac-  *  232 
tions  between  husband  and  wife  should  be  free  from 
fraud,  and  not  prejudicial  to  pre-existing  creditors  of  the 
husband.  The  presumptions  are  not  equally  balanced  in  the 
different  States.     But  presumptions  of  a  gift  fi'om  the  wife 

^  Coleman  v.  Satterfield,  2  Head,  259 ;  Jenney  v.  Grey,  5  Ohio  St.  45. 
2  Sampley  v.  Watson,  43  Ala.  377. 
8  See  Lawrence  v.  Finch,  2  C.  E.  Green,  234. 

*  Warner  v.  Warren,  4(5  N.  Y.  228 ;  Edgerly  v.  Whalan,  106  Mass.  307 ; 
Little  V.  Willets,  55  Barb.  125. 

5  Ladd  V.  Hildebrant,  27  Wis.  135;  Wells  v.  Thorman,  37  Conn.  318;  Mc- 
jLaren  v.  Hall,  26  Iowa,  297. 

6  Livesley  v.  Lasalette,  28  Wis.  38 ;  Warner  v.  Warren,  40  N.  Y.  228. 

[  '^^^  ] 


*  232  HUSBAND    AND   WIFE. 

are  not  to  be  strongly  favored  where  the  husband  is  held  out 
to  others  as  her  agent.^  So  gifts  of  income  would  be  more 
readily  presumed  than  gifts  of  capital.  Her  title  is  generally 
open  to  inspection,  and  may  be  challenged  for  fraud.  In 
New  Hampshire,  it  is  held  that  the  wife  may  lease  her  sepa- 
rate property  to  her  husband.^  And  the  rule  is  recognized 
under  the  statutes  of  many  States,  though  in  other  States 
denied,  that  she  may  bestow  her  separate  estate  upon  him 
either  by  way  of  loan  or  gift.^  His  promissory  notes  given 
for  a  loan  from  her  may  be  enforced  against  him  or  his  estate.^ 
But  it  is  fair  to  say  that  whenever  she  gives  her  property  to 
him  without  agreement  for  any  repayment,  but  for  invest- 
ment in  his  business,  and  to  afford  him  credit  with  the  world, 
and  he  so  invests  it  with  her  knowledge  and  acquiescence,  his 
ho7ia  fide  creditors  ought  not  to  suffer  afterwards  who  had 
relied  upon  this  capital,  because  of  her  attemj)t  to  recall  the 
gift  when  she  finds  him  embarrassed ;  not  even  a  special  part- 
ner would  have  a  right  to  do  so.^ 

With  the  assent  of  the  husband  and  father  the  labor  of  the 
wife  and  children  may  be  bestowed  upon  the  separate  prop- 
erty of  the  wife  and  thus  enure  to  their  benefit.  There  is  no 
known  rule  of  law  which  requires  the  husband  and  father  to 
compel  his  wife  and  cliildren  to  work  in  the  service  of  his 
creditors.^  And  it  is  held  that  the  husband  may  stipulate, 
though  insolvent,  that  the  product  of  his  own  labor  shall  be 
appropriated  to  his  wife's  sejjarate  use."  If  permitted  to  be 
maintained  upon  his  wife's  property,  he  does  not  necessarily 

1  See  Wales  v.  Newbould,  9  Mich.  45 ;  Elijah  v.  Taylor,  87  III.  247  ;  Miller  v. 
Edwards,  7  Bush,  394. 

2  Albln  V.  Lord,  39  N.  H.  196. 

3  Hinney  v.  Phillips,  50  Penn.  St.  882  ;  Fox  v.  Jones,  1  W.  Va.  205 ;  White 
V.  Callinan,  19  Ind.  43 ;  2  Kent  Com.  Ill,  and  cases  cited,  last  ed. ;  Johnston  v, 
Johnston,  1  Grant,  468  ;  Gage  v.  Dauchy,  28  Barb.  622;  Roper  v.  Roper,  29  Ala. 
247.     See  chapter  on  Post-nuptial  Settlements. 

*  Logan  V.  Hall,  19  Iowa,  491  ;  Bryant  v.  Bryant,  3  Bush,  155. 

5  See  Kuhn  v.  Stansfield,  28  Md.  210 ;  Wortman  v.  Price,  47  111.  22 ;  Mazouck 
V.  Iowa  Northern  R.  R.  Co.,  31  Iowa,  559.  The  wife  may  be  her  husband's 
creditor  in  bankruptcy.  In  re  Blandin,  1  Lowell,  543.  And  see  Glidden  v.  Tay- 
lor, 16  Ohio  St.  509. 

6  Johnson  v.  Vail,  1  McCart.  423. 

7  Hodges  V.  Cobb,  8  Rich.  50.     But  see  Penn  v.  Whitehead,  12  Gratt.  74. 

[248] 


WIFE'S  DOMINION  OVER  HER  SEPARATE  ESTATE.     *  232 

acquire  a  title  to  the  property  or  its  products  merely  by 
bestowing  his  voluntary  labor  upon  it.^  And  a  similar  prin- 
ciple may  be  applied  to  a  wife  supported  from  her  husband's 
property.^ 

But  a  married  woman's  promissory  note  does  not,  as  a  rule, 
secure  her  husband's  debts,  nor  does  she  by  executing  it  bind 
herself  lawfully  as  his  surety  on  a  contract  not  relating  to  her 
separate  estate,  nor  for  its  benefit,  so  as  to  render  herself 
liable  to  suit.^  The  same  may  be  said  of  her  undertakings 
for  the  benefit  of  third  parties  ;  as  a  mere  accommodation  in- 
dorser,  for  instance.^  The  tendency  of  some  of  the  late  cases 
is  to  exempt  promissory  notes  which  are  drawn  payable 
to  a  married  *  woman  or  order  from  all  liability  for  the  *  233 
husband's  engagements.^ 

It  is  held  in  New  Hampshire  that  a  wife,  owning  a  right  of 
dower  in  her  husband's  lands,  may  properly  convey  it  and 
take  a  promissory  note  of  equal  value  payable  to  herself;  or, 
owning  a  promissory  note  in  her  own  right,  secured  by  mort- 
gage on  the  husband's  estate,  may  sell  and  release  her  interest 
in  such  estate,  and  take  a  new  note  payable  to  herself.^  Even 
promissory  notes  taken  in  the  husband's  name  are  open  to  ex- 
planation.'^ As  to  the  wife's  gratuitous  undertaking  to  subject 
her  property  to  her  husband's  debts,  the  Pennsylvania  rule  is 

1  Rush  V.  Vought,  55  Penn.  St.  437  ;  Boos  v.  Comber,  23  Wis.  284 ;  Merrick 
I'.  Plumley,  99  Mass.  5G6  ;  Gage  v.  Dauchy,  34  N.  Y.  293  ;  Feller  v.  Alden,  23 
Wis.  301. 

■^  Burcher  v.  Ream,  68  Penn.  St.  421.  See  Dean  v.  Bailey,  50  111.  481,  as  to 
the  liability  of  a  farm  and  stock,  where  the  husband's  control  is  not  of  a  charac- 
ter inconsistent  with  tiie  common  interests  of  himself  and  wife. 

8  Parker  v.  Simonds,  1  Allen,  258  j  Shannon  v.  Canney,  44  N.  H.  592  ;  Keaton 
v.-  Scott,  25  Geo.  652;  Yale  v.  Dederer,  18  N.  Y.  265;  Wolff  v.  Van  Meter,  19 
Iowa,  134  ;  Sweeney  v.  Smith,  15  B.  Monr.  325.  And  see  Sawyer  v.  Fernald,  59 
Me.  500;  De  Vries  v.  Conklin,  22  Mich.  255;  Vankirk  v.  Skillman,  5  Vroom 
109. 

*  Shannon  v.  Canney,  44  N.  H.  592;  Crane  v.  Kelley,  7  Allen,  250;  Bailey  v. 
Pearson,  9  Post.  77  ;  Lytie's  Appeal,  36  Penn.  St.  131 ;  Peake  v.  La  Baw,  6  C. 
E.  Green,  269;  Bauer  v.  Bauer,  40  Mis.  61. 

5  See  Cowles  v.  Morgan,  34  Ala.  535;  Lewis  v.  Harris,  4  Met.  (Ky.)  353  . 
Chapman  v.  Williams,  13  Gray,  416  ;  Paine  v.  Hunt,  40  Barb.  75.  ' 

6  Nims  V.  Bigelow,  45  N.  H.  343. 

^  Buck  V.  Gilson,  37  Vt.  653 ;  Conrad  v.  Shomo,  44  Penn.  St.  193.  See  Baker 
I'.  Gregory,  28  Ala.  544  ;  Fowler  v.  Rice,  31  Ind.  358. 

[249] 


*233  HUSBAND  AND   WIFE. 

that  equity  will  not  enforce  it,  but  leave  the  parties  to  their 
legal  remedies.^ 

There  are  many  late  decisions  as  to  the  husband's  dominion 
over  his  wife's  separate  property.  Thus  in  Wisconsin  he  may 
execute  in  her  name  a  valid  conveyance  of  her  land  under  a 
power  of  attorney.^  In  Maine,  he  may  sue  for  damages  to 
his  wife's  separate  estate  while  managing  it  for  her.^  And  the 
wife  maj'-  employ  other  agents,  who  will  not  be  held  answer- 
able to  him  for  executing  her  orders.^  In  Michigan,  a  hus- 
band who  acted  as  agent  of  his  wife  in  selling  her  land  and 
taking  a  mortgage  for  deferred  payments,  and  then  became 
the  assignee  of  the  mortgage,  has  been  treated  directly  as 
vendor  and  mortgagee,  as  to  equities  growing  out  of  fraud  or 
deceit  on  his  part  in  the  transaction.^  The  husband's  per- 
sonal receipt  of  his  wife's  separate  property  will  not  discharge 
a  third  party  from  hability  to  the  wife  where  the  circum- 
stances repel  a  presumption  of  agency  on  the  husband's 
part.^ 

It  is  the  declared  rule  of  many  States  that  the  hus- 
*  234  band  *  cannot  of  his  own  act  subject  his  wife's  sepa- 
rate land  to  debts  for  improvements,  or  subject  it  to  a 
mechanic's  lien.'''  Nor  mortgage  it  for  his  individual  debt.^ 
For  it  is  a  general  principle  that  the  wife's  separate  property 
cannot  be  made  liable  for  the  debts  of  her  husband  or  others 
without  her  assent.^     Nor  is  a  husband  allowed  to  sell  his 

1  White's  Appeal,  36  Penn.  St.  134. 

2  Weisbrod  v.  Chicago,  &c.,  R.  R.  Co.,  18  Wis.  35;  Peck  v.  Hendershott,  14 
Iowa,  40. 

3  Woodman  v.  Neal,  48  Me.  266.  But  only  in  her  name,  in  accordance  with 
statute. 

4  Southard  v.  Plummer,  36  Me.  64. 

5  Burchard  v.  Frazer,  23  Mich.  224. 

6  Read  v.  Earle,  12  Gray,  423 ;  Anderson  v.  Gregg,  44  Miss.  170. 

7  Briggs  V.  Titus,  7  R.  I.  441 ;  Spinning  v.  Blackburn,  13  Ohio  St.  131 ;  Pell 
V.  Cole,  2  Met.  (Ky.)  252;  Selph  v.  Rowland,  23  Miss.  264;  Hughes  v.  Peters, 
1  Cold.  67  ;  Esslinger  v.  Huebner,  22  Wis.  632.  But  the  mechanic's  statutory 
right  of  lien  generally  extends  to  a  married  woman's  lands  where  she  contracted 
in  person  or  by  agent,  and  perhaps  where  the  contract  was  for  the  benefit  of  the 
land.  Burdick  v.  Moon.  24  Iowa,  418  ;  Woodward  v.  Wilson,  68  Penn.  St.  208 ; 
Schwartz  v.  Saunders,  46  111.  18  ;  Lindley  v.  Cross,  31  Ind.  106. 

8  See  Patterson  v.  Flanagan,  1  Ala.  S.  C.  427. 

9  Hutchins  v.  Colby,  43  N.  H.  150 ;  Hatz's  Appeal,  40  Penn.  St.  209  ;  George 

[250] 


WIFE'S  DOMINION  OVER  HER  SEPARATE  ESTATE.     *  234 

wife's  separate  real  estate  during  her  life  by  his  own  deed.^ 
But  a  mortgage  given  by  a  married  woman  upon  her  separate 
estate,  acknowledged  in  conformity  with  the  statute,  and  with 
the  joinder  of  the  husband,  is  a  valid  security  and  capable  of 
enforcement ;  not  alone  where  she  had  it  mortgaged  to  secure 
her  husband's  debt,  but  also,  in  a  case  free  from  fraud  or  un- 
due influence,  where  it  was  mortgaged  for  the  benefit  of  a 
third  person.2  But  in  such  cases  the  wife's  rights  as  surety 
are  carefully  guarded  ;  and  the  husband  cannot  bind  her  by 
his  own  agreement  for  extension  or  discharge.^  Her  right  to 
exoneration  from  his  estate  as  a  creditor  after  his  death  ap- 
plies with  reference  to  mortgages  of  her  separate  lands  for 
the  benefit  of  herself  and  her  heirs.*  And,  on  the  other  hand, 
where  she  is  a  mortgagee  in  her  own  right,  the  husband  can- 
not alone  receive  payment  and  satisfaction  and  discharge  the 
mortgage.^ 

While  the  wife  may  avoid  a  fraud  uj)on  her  as  against  all 
who  participated  therein,  it  is  held  that  a  creditor's  rights 
cannot  be  prejudiced  by  any  misbehavior  of  the  husband, 
which  procured  them  the  wife's  security},  if  it  was  without 
his  instigation,  knoMedge,  or  consent.^  But  when  the  hus- 
band makes  a  void  transfer  as  his  wife's  trustee,  it  is  held  that 
she  can  follow  the  investment  into  other  hands."  Or  she  may 
have  him  removed  from  his  trusteeship  for  suitable  cause. ^ 

V.  Ransom,  15  Cal.  322 ;  Cheuvete  v.  Mason,  4  Greene  (Iowa),  231 ;  Yale  v. 
Dederer,  18  N.  Y.  265;  Sharp  v.  Wickliffe,  3  Litt.  10;  Johnson  v.  Runyon,  21 
Ind. 115. 

1  Prater  v.  Hoover,  1  Cold.  544. 

2  Galway  i-.  Fullerton,  2  C.  E.  Green,  389 ;  Beals  v.  Cobb,  51  Me.  348  ;  Bart- 
lett  V.  Bartlett,  4  Allen,  440.  But  in  Mississippi  slie  cannot  mortgage  for  lier 
husband's  debts  beyond  the  extent  of  her  separate  income,  though  her  husband 
may  be  bound  to  the  usual  extent.  Foxworth  v.  Magee,  44  Miss.  430.  See  Wil- 
kinson V.  Cheatham,  45  Ala.  337  ;  Keller  v.  Ruiz,  21  La.  Ann.  283.  As  to  the 
Pennsylvania  rule,  see  p.  236. 

3  Savage  v.  Winchester,  15  Gray,  453  ;  Hanford  v.  Bockee,  5  C.  E.  Green, 
101 ;  Bank  of  Albion  v.  Burns,  46  N.  Y.  170. 

*  lb. ;  Kinner  v.  Walsh,  44  Mis.  65. 

*  McKinney  v.  Hamilton,  51  Penn.  St.  63. 

6  Childs  V.  McCliesney,  20  Iowa,  431 ;  Edgerton  v.  Jones,  10  Minn.  427. 

■^  George  v.  Ransom,  14  Cal.  658. 

8  Raney  v.  Rainey,  35  Ala.  282.  So  with  any  other  trustee  of  her  separate 
property.  Johnson  v.  Snow,  5  R.  I.  72.  See  Scott  v.  Scott,  13  Ind.  225 ;  Ritter 
V.  Ritter,  31  Penn.  St.  390. 

[251] 


*  234  HUSBAND  AND   WIFE.       ^ 

In  all  controversies  of  this  kind,  the  late  observation  of  a 
Pennsylvania  court  is  worth  remembering,  that  a  married 
woman  cannot  possibly  eijjoy  her  property  as  freely  as  before 
marriage  ;  for  the  nature  of  her  relation  with  her  husband 
forbids  it.^ 

The  rule  in  many  States,  under  the  married  women's  acts, 
is  that  the  husband  must  join  the  wife  in  contracts  and  con- 
veyances relating  to  her  separate  property.     Particularly  is 
this  true  of  transactions  concerning  the  wife's  real  estate. 
Contracts  and  conveyances  otherwise  made  are  not 

*  235    considered  binding.^     But  in  *  North  Carolina  it  has 

been  decided,  on  equity  principles,  that  where  a  wife 
after  marriage,  supposing  the  whole  interest  in  her  land  was 
in  her,  made  a  conveyance  to  a  trustee  for  her  sole  and  sep- 
arate use,  which  her  husband  signed  as  a  party,  and  by  various 
clauses  manifested  a  concurrence  in  her  act,  but  did  not  pro- 
fess directly  to  convey  any  estate,  the  recital  in  the  deed  that 
ten  dollars  was  paid  by  the  trustee  to  the  wife  raised  a  use, 
and  in  that  way  passed  the  husband's  interest  to  the  trustee.^ 
The  language  of  the  married  women's  acts  in  many  States 
authorizes  the  inference  that  nothing  further  than  the  written 
concurrence  of  the  husband  is  requisite  to  complete  the  valid- 
ity of  the  wife's  transfer  of  separate  personal  property.  The 
voluntary  conveyance  of  the  wife  with  her  husband  passes 
her  separate  estate,  real  or  personal.  And  in  some  States  the 
wife's  sole  deed  of  her  separate  real  estate  is  sufficient  to  ]Dass 
her  entire  interest.*    But  it  has  been  held  that  the  wife's  exe- 


1  Walker  v.  Reamy,  36  Penn.  St.  410. 

2  Wriglit  V.  Brown,  44  Penn.  St.  224 ;  Camden  v.  Vail,  23  Cal.  633 ;  Maclay 
V.  Love,  2.5  Cal.  367  ;  Pentz  v.  Simonson,  2  Beasl.  232 ;  Major  v.  Symmes,  19 
Ind.  117;  Miller  v.  Hine,  13  Ohio  St.  .565;  Haugh  v.  Blythe,  20  Ind.  24  ;  Dodge 
V.  Hollinshead,  6  Minn.  25  ;  Eaton  v.  George,  42  N.  H.  375  ;  Miller  v.  Wetherby, 
12  Iowa,  415  ;  Ezelle  v.  Parker,  41  Miss.  520;  O'Neal  v.  Robinson,  45  Ala.  526  ; 
Cole  V.  Van  Riper,  44  111.  58 ;  Armstrong  v.  Ross,  5  C.  E.  Green,  109.  And  see 
Wickliffe  v.  Dawson,  19  La.  Ann.  48.  But  see  Stacker  i.-.  Wliitlock,  3  Met. 
(Ky.)  244. 

3  Barnes  i-.  Haybarger,  8  Jones,  76. 

*  Springer  v.  Berry,  47  Me.  330;  Farr  v.  Sherman,  11  Mich.  33;  Beal  v. 
Warren,  2  Gray,  447.  But  a  contemporaneous  written  assent  of  the  husband 
is  required  bv  some  statutes.     Melley  v.  Casey,  99  Mass.  241. 

[  252] 


WIFE'S  DOMINION  OVER  HER  SEPARATE  ESTATE.     *  235 

cution  of  a  conveyance  in  blank  is  void,  though  the  deed  be 
afterwards  filled  up  according  to  her  directions.^ 

Following  the  spirit  of  recent  legislation,  some  American 
courts  now  hold  the  wife  liable  on  her  covenants  contained  in 
a  conveyance  of  her  separate  lands.^  So  specific  performance 
is  decreed  against  her  on  her  written  promise  to  convey ;  pro- 
vided the  contract  be  executed  with  the  formalities  requisite 
in  her  conveyance.^  And  equity  will  not  permit  the  wife  to 
avoid  a  sale  without  refunding  the  purchase-money.*  So  it  is 
held,  under  the  married  women's  acts,  that  where  a  wife  pur- 
chased goods,  giving  her  sole  notes  for  them,  and  after  her 
husband's  death  she  promised  to  pay  the  notes  and  settle  for 
other  goods  furnished,  for  which  she  gave  no  notes,  the  fjrom- 
ise  Avas  founded  on  good  consideration,  and  she  might  be  sued 
by  the  vendors.^ 

*  But  the  fact  that  a  husband  allows  his  wife  to  *  236 
treat  and  deal  with,  as  her  own,  property  acquired 
by  her  independently  of  the  married  women's  acts  is  not  in- 
consistent with  his  intention  to  assert  his  marital  rights  to 
it  if  he  survive  ;  neither  if  he  allows  her  to  dispose  of  the 
income  and  loan  it  on  promissory  notes  running  in  her  own 
name,  would  such  income  become  thereby  converted  into 
her  separate  estate.*^  The  married  women's  acts,  in  the 
absence  of  unequivocal  language,  do  not  change  the  com- 
mon-law rule  with  reference  to  separate  personal  property 
of  a  married  woman,  not  disposed  of  in  her  life  nor  by  will  ; 

1  Burns  v.  Lynde,  6  Allen,  305.  See  further  Shields  v.  Keys,  24  Iowa,  298. 
The  husband's  oral  consent  will  not  suffice,  where  the  statute  requires  his  writ- 
ten consent  to  her  conveyance.  Townsley  v.  Chapin,  12  Allen,  476.  But  as  to 
sale  of  certain  personal  chattels,  see  Holman  v.  Gillette,  24  Mich.  414.  The 
rules  of  the  text  apply  to  a  power  of  attorney  to  sell  the  wife's  separate  land. 
Dow  V.  Gould,  &c.,  Co.,  31  Cal.  629. 

2  Basford  v.  Peirson,  7  Allen,  524  ;  Gunter  v.  Williams,  40  Ala.  561 ;  Rich- 
mond V.  Tibbies,  26  Iowa,  474. 

3  Woodward  v.  Seaver,  38  N.  11.  29  ;  Baker  v.  Hathaway,  5  Allen,  103.  See 
Rumfelt  V.  Clemens,  46  Penn.  St.  455;  Stevens  v.  Parish,  29  Ind.  260;  Love  v. 
Watkins,  40  Cal.  547. 

*  Kolls  V.  De  Leyer,  41  Barb.  208. 

5  Goulding  V.  Davidson,  26  N.  Y.  604.     But  see  Felton  v.  Reid,  7  Jones,  269. 

6  Ryder  i-.  Hulse,  24  N.  Y.  372;  8.  c.  33  Barb.  264. 

[253] 


*  236  HUSBAND  AND  WIFE. 

it  goes  to  her  surviving  husband  by  his  marital  right  in  the 
same  manner  as  before.^  And  a  wife  who  has  appropriated 
her  separate  property  to  her  husband's  use,  during  his  life, 
cannot  charge  his  assets  with  it  after  his  death.^ 

The  Supreme  Court  of  Pennsylvania,  commenting  upon 
the  recent  married  women's  code  in  that  State,  observes  that 
its  purpose  was  to  secure  a  wife  in  the  use  and  enjoyment  of 
her  j)roperty,  not  to  enable  her  to  make  contracts  she  could 
not  have  made  before  ;  ^  they  consequently  have  treated  as 
void  her  judgment  for  a  debt  contracted  for  the  improvement 
of  her  real  estate  ;  ^  her  bond,  accompanied  by  a  mortgage  of 
her  separate  estate ;  ^  and  her  debt,  contracted  jointly  with 
her  husband,  though  for  family  necessaries.^  And  the  mani- 
fest tendency  in  that  State  is  plainly  to  limit  the  wife's  gene- 
ral privileges  to  the  statutory  grant  of  power  J  Nor  is  the 
New  York  doctrine  of  the  husband's  employment  as  "  man- 
aging agent "  favored  to  the  injury  of  creditors.^  But  where 
the  wife  acquires  property  rights  under  her  voluntary  con- 
tract, they  are  to  be  protected.^ 

*  237        *  In  JNIassachusetts,  the  principle  upon  which  the 

wife  may  charge  her  separate  estate  is  stated  to  be  that 
where  by  her  contract  the  debt  created  is  made  expressly  a 
charge  on  her  separate  estate,  or  is  expressly  contracted  on 
its  credit,  or  where  the  consideration  goes  to  the  benefit  gf 
such  estate,  or  to  enhance  its  value,  equity  will  decree  that  it 
shall  be  paid  from  such  estate  or  its  income,  to  the  extent  to 
which  the  power  of  disposal  by  the  married  woman  may  go.^*' 

1  Ranson  j;.  Nichols,  22  N.  Y.  110;  Wilkinson  v.  Wright,  6  B.  Monr.  576; 
Brown  v.  Brown,  6  Humph.  127. 

2  Edelen  v.  Edelen,  11  Md.  415. 

3  Brunner's  Appeal,  per  Strong,  J.,  47  Penn.  St.  67. 
*  lb.     And  see  Patton  v.  Stewart,  19  Ind.  233. 

5  Steinman  v.  Ewing,  43  Penn.  St.  63  ;  Hartman  v.  Ogborn,  54  Penn.  St.  120. 

8  Cunimings  v.  Miller,  3  Grant,  146. 

■J  See  Ruinfelt  v.  Clemens,  46  Penn.  St.  455 ;  Parke  v.  Kleebor,  37  Penn.  St. 
251.  8  Keeney  v.  Good,  21  Penn.  St.  349. 

9  Walker  v.  Coover,  65  Penn.  St.  430. 

^^  Willard  v.  Eastham,  15  Gray,  328 ;  Rogers  u.  Ward,  per  Bigelow,  C.  J.,  8 
Allen,  387  ;  Westgate  v.  Munroe,  100  Mass.  227. 

[  254  ] 


I 


WIFE'S  DOMINION  OVER  HER  SEPARATE  ESTATE.     *  237 

And  the  equitable  relief  which  is  afforded  to  enforce  payment 
of  such  a  debt  out  of  her  separate  property  is  founded  on  the 
reason  that  the  contract  is  entered  into  in  such  form  as  to 
indicate  an  intent  by  the  wife  to  create  a  personal  liability. 
Equity  will  give  effect  to  this  intention  by  assisting  the  cred- 
itor to  reach  and  apply  her  separate  estate,  so  far  as  the  jus 
disponendi  is  vested  in  her.  This  intent  and  the  facts  on 
which  it  rests  are  in  no  degree  affected  by  the  giving  of  col- 
lateral security.^  Hence  payment  may  be  enforced  out  of  a 
married  woman's  separate  estate  upon  a  bond  or  promissory 
note  given  by  her  for  the  price  of  land  conveyed  to  her  sole 
and  separate  use.^ 

Upon  the  ground  that  the  wife's  separate  estate  should  be 
bound  by  contracts  for  its  benefit,  her  debts  for  improvements 
upon  lands  conveyed  to  her  sole  and  separate  use  have  been 
enforced  in  several  late  instances.^  So,  too,  the  joint  note 
of  herself  and  husband  for  lumber  and  materials  to  be  used 
thereon.*  The  disposition  of  the  courts  in  such  cases,  where 
the  contract  was  made  by  the  husband,  is  to  infer  an  agency 
on  the  wife's  behalf  for  that  purpose. 

There  is  some  difficulty  in  the  purchase  by  a  married 
woman  of  property,  whether  real  or  personal,  on  credit,  aris- 
ing out  of  the  circumstance  that  she  cannot  make  a  contract 
for  payment  which  will  be  personally  binding.  In 
New  Hampshire,  *  it  is  held  that  a  married  woman  can-  *  238 
not,  under  the  statutes,  make  a  contract  for  money  or 
property  in  anticipation  of  the  purchase  of  separate  estate  ; 
and  hence  that  her  note  given  for  money  borrowed  wherewith 


1  Rogers  v.  Ward,  8  Allen,  387. 

'•*  lb.  Estabrook  v.  Earle,  97  Mass.  302.  As  to  barring  her  rights  by  estoppel, 
see  Bemis  v.  Call,  10  Allen,  512.     See  Uavenport  v.  Davenport,  5  Allen,  464. 

3  Conway  v.  Smith,  13  Wis.  125;  Marshall  v.  Miller,  3  Met.  (Ky.)  333; 
Fowler  v.  Seaman,  40  N.  Y.  592;  Carpenter  v.  Leonard,  6  Minn.  155;  Britter  v. 
Robertson,  11  Tex.  142.  In  Ileugh  v.  Jones,  32  Penn.  St.  432,  it  is  lield  that 
unless  the  materials  are  actualh/  so  used  the  debt  cannot  be  enforced  against  the 
estate.     And  see  p.  234,  «.,  as  to  mechanics'  lien. 

*  Parker  i'.  Kane,  4  Allen,  340.  And  see  Major  v.  Symmes,  19  Ind.  117; 
Eckert  v.  Renter,  4  Vroom,  266  ;  Marsh  v.  Alford,  6  Bush,  392 ;  Johnson  v. 
Tuteweiler,  35  Ind.  353. 

[  255  ] 


*  238  HUSBAND   AND   WIFE. 

to  make  such  purchase  is  void.^  But,  on  the  other  hand,  the 
New  York  doctrine  is  that  she  may  purchase  property  on 
credit ;  and  if  the  vendor  will  run  the  risk  of  being  able  to 
obtain  payment  of  the  consideration  of  the  sale,  the  transfer 
remains  valid,  and  no  estate  will  pass  to  the  husband,  whether 
the  wife  had  previously  any  separate  estate  or  not.^  And  her 
separate  estate  is  in  fact  charged  under  suitable  circumstances 
by  her  purchase  on  credit,  as  we  have  already  seen.^  Where 
she  cannot  be  sued  upon  her  promise  to  buy  upon  credit,  she 
will  not  in  equity  be  allowed  to  decline  and  yet  keep  the 
property  too  ;  and  hence  lands  sold  her  on  her  credit,  and  for 
the  benefit  of  her  separate  estate,  have  been  treated  as  subject 
to  the  vendor's  lien,  even  though  the  notes  she  gave  by  way 
of  executory  contract  could  not  as  such  be  enforced  against 
her.4 

In  Maine,  it  is  held  that  a  married  woman  may,  under  the 
statutes,  hold  an  estate  in  trust  and  make  contracts  accord- 
ingly.^ And  in  Maine,  New  York,  Illinois,  Indiana,  and  some 
other  States,  a  wife  may  now  sue  at  law  in  matters  relating 
to  her  separate  property  without  joining  her  husband.^  So 
she  may,  in  some  States,  bind  herself  by  a  submission  to  arbi- 
trationJ  But  she  cannot  confess  judgment,  though  for  a 
debt  incurred  for  the  benefit  of  her  separate  estate.^  Under 
the  married  women's  acts  of  some  States  the  wife  may  sue 

1  Ames  V.  Foster,  42  N.  H.  381.  But  see  Batchelder  v.  Sargent,  47  N.  H. 
262.  And  see  Carpenter  v.  Mitchell,  50  III.  470;  Dunning  v.  Pike,  46  Me.  461  ; 
O'Daily  v.  Morris,  31  Ind.  111. 

2  Darby  v.  Calligan,  16  N.  Y.  21  ;  Knapp  v.  Smith,  27  N.  Y.  277.  And  see 
Chapman  v.  Foster,  6  Allen,  136  ;  Shields  v.  Keys,  24  Iowa,  298. 

3  Supra,  p.  230. 

*  Pemberton  v.  Johnson,  46  Mis.  342  ;  Bruner  v.  Wheaton,  ib.  363 ;  Carpenter 
V.  Mitchell,  54  III.  120  ;  Hunter  v.  Duvall,  4  Bush,  438. 

s  Springer  v.  Berry,  47  Me.  330. 

6  Walker  v.  Oilman,  45  Me.  28 ;  Ackly  v.  Tarbox,  31  N.  Y.  565 ;  Peters  v. 
Fowler,  41  Barb.  467  ;  Emerson  v.  Clayton,  32  111.  493  ;  Leonard  v.  Townsend, 
26  Cal.  435 ;  Weymouth  v.  Chicago,  &c.,  R.R.  Co.,  17  Wis.  550 ;  Jordan  v.  Cum- 
mings,  43  N.  H.  134 ;  Gee  v.  Lewis,  20  Ind.  149. 

T  Palmer  v.  Davis,  28  N.  Y.  242 ;  Duren  v.  Getchell,  55  Me.  241.  Otherwise 
in  Mississippi.     Handy  v.  Cobb,  44  Miss.  699. 

8  Watkins  v.  Abrahams,  24  N.  J.  72.  And  see  Patton  v.  Stewart,  19  Ind. 
233.     Otherwise  in  some  States.    Bank  v.  Garlinghouse,  53  Barb.  615. 

[256  ] 


WIFE'S  DOMINION  OVER  HER  SEPARATE  ESTATE.    *  238 

her  husband  at  law  like  any  stranger.^  But  in  other  States 
she  cannot.^  In  Iowa,  after-acquired  property  may  be  taken, 
upon  a  judgment  against  her  rendered  upon  her  legal  con- 
tract.^ 

To  attempt  a  minute  analysis  of  the  married  women's  acts 
would  require  more  space  than  our  plan  will  permit.  Nor 
would  it  profit  the  reader.  The  independent  legisla- 
tion of  some  *  thirty  distinct  communities,  without  *  239 
nniformity  of  plan  or  principle,  involving,  as  it  does,  the 
most  interesting  and  yet  the  most  perplexing  of  social  prob- 
lems, must  necessarily  produce  results  which  cannot  be  recon- 
ciled. It  is  too  early  yet  to  generalize  from  the  decisions. 
Even  though  the  hand  of  innovation  should  be  stayed  for  a 
while,  and  public  attention  centre  in  the  work  of  blending 
these  results  into  harmony,  it  would  be  many  years  before 
our  courts,  applying  civil  codes  and  the  traditions  of  the  Eng- 
lish common  law  and  equity  jurisprudence  to  the  discordant 
mass  of  material  before  them,  could  hope  to  set  up  a  consist- 
ent and  thorough  American  system.  As  one  of  our  own 
jurists  remarks,*  wlierever  the  line  may  be  drawn,  it  will  be 
long  before  the  public  will  understand  and  recognize  the 
point  where  the  power  of  a  married  woman  to  bind  herself 
by  her  bargains  ceases,  and  frauds  upon  the  tlioughtless  and 
inconsiderate  must  often  occur. 

1  Scott  V.  Scott,  13  Ind.  225. 

2  Ritter  v.  Hitter,  31  Penn.  St.  390. 

3  Van  Metre  v.  Wolf,  27  Iowa,  341. 

*  Per  Bell,  0.  J.,  in  Ames  v.  Foster,  42  N.  H.  381. 


17 


[257] 


*  24:0  HUSBAND   AND  WIFE. 


*240  *  CHAPTER   XIII. 

THE   wife's   pin-money,    SEPARATE   EARNINGS,    AND   POWER   TO 

TRADE. 

The  wife's  pin-money  constitutes  a  feature  of  English  mar- 
riage settlements  at  the  present  day.  Pin-money  may  be 
defined  as  a  certain  provision  for  the  wife's  dress  and  pocket, 
to  which  there  is  annexed  the  duty  of  expending  it  in  her 
"  personal  apparel,  decoration,  or  ornament."  ^  It  differs 
from  the  wife's  separate  estate  in  being  a  gift  subject  to  con- 
ditions and  not  at  her  absolute  disposal.  It  differs  from  her 
paraphernalia  in  being  subject  to  her  control  during  marriage, 
and  not  awaiting  the  husband's  death.^ 

Upon  a  somewhat  enlarged  construction  pin-money  is  in 
the  nature  of  an  annuity  to  pay  the  wife's  ordinary  personal 
expenses ;  and  is  rather  the  privilege  of  the  wealthy  than  the 
poor.  A  person  in  an  humble  station  of  life  pays  his  wife's 
bills  as  he  pays  his  own.  A  person  in  a  station  rather  higher 
is  accustomed  to  make,  for  common  convenience,  an  allowance 
to  his  wife  of  so  much  for  house-keeping  expenses,  if  she 
takes  charge  of  them,  and  so  much  over  for  her  own  dress 
and  the  dress  of  the  children.  A  person  in  a  still  higher  sta- 
tion makes  a  general  arrangement,  which  probably  extends 
over  years,  if  not  over  the  Avhole  coverture.  But  a  person  in 
a  yet  more  elevated  station  makes  a  special  stipulation  by  the 
marriage  settlement,  which  is,  as  it  were,  saying,  "  You,  the 
wife,  shall  not  be  reduced  to  the  somewhat  humiliating 
*  2-il  necessity  of  disclosing  *  to  me  every  want  of  a  pound 
to  keep  in  your  pocket ;  or  of  taking  my  pleasure  and 
obtaining  my  consent  every  time  you  want  to  go  to  the  milli- 
ner's shop  to  order  your  dress  ;  but  you  shall  have  so  much, 

1  Per  Lord  Langdale,  Jodrell  v.  Jodrell,  9  Beav.  45 ;  Howard  v.  Digby,  2  CI. 
&  Fin.  654. 

2  Macq.  Hus.  &  Wife,  318 ;  Peachey  Mar.  Settl.  298. 

[  258  ] 


WIFE'S  SEPARATE  EARNINGS  AND  POWER  TO  TRADE.  *  241 

consistent  with  my  estate  and  my  income,  which  you  shall 
retain  apart  from  me  and  exempt  from  my  control."  And 
this  supply,  as  Lord  Brougham  remarks,  is  the  wife's  pin- 
money.^ 

The  exact  period  when  pin-money  was  first  introduced  into 
England  is  not  known.  Lord  Brougham  inclines  to  ascribe 
it  to  the  feudal  times.^  But  there  is  equally  good  authority 
for  fixing  the  date  at  the  Restoration  ;  and  the  lawyers  resort 
to  Addison's  Spectator  in  proof  of  the  latter  supposition.^ 
The  popular  name  of  this  provision  scarcely  suggests  its  real 
significance  ;  for,  so  far  from  being  a  petty  allowance,  it  is 
often  of  the  most  liberal  amount  imaginable.* 

The  subject  of  the  wife's  pin-money  seems  to  have  received 
little  attention  in  this  country.^  And  in  England  few  cases 
of  the  sort  have  ever  arisen.  It  is  found  more  convenient  in 
marriage  contracts  to  settle  a  certain  allowance  upon  the  wife 
by  way  of  separate  estate,  which  allowance  is  subject  to  the 
usual  incidents  of  separate  property.  Decisions  as  to  pin- 
money  and  separate  estate  are  frequently  confounded.^ 

The  leading  English  case  on  this  subject  is  Howard  v. 
Dighy^  which  went  to  the  House  of  Lords  in  1834,  and  whose 
main  decision  was  to  the  effect  that  the  personal  representa- 
tives of  the  wife  could  not  recover  arrears.'^  The  correctness 
of  its  principle  has  been  questioned  by  some  writers.^ 
In  general,  the  usual  *  equity  rule  against  claiming  *  242 
more  than  one  year's  arrears  appears  to  apply  to  sep- 
arate estate  and  pin-money  alike.^  In  other  ways,  too,  the 
wife's  claim  may  be  barred. ^'^ 

1  Howard  v.  Digby,  2  CI.  &  Fin.  654.  2  Jb.  676. 

3  Spectator,  295.     See  Peachey  Mar.  Settl.  300 ;  Sugd.  Law  Prop.  165. 

*  In  one  reported  Englisli  case,  by  no  means  recent,  .£13,000  a  year  was  se- 
cured to  the  wife  as  her  pin-money.  See  2  Russ.  1,  and  n.  to  Macq.  Hus.  &  Wife, 
318. 

*  But  see  Miller  v.  Williamson,  5  Md.  219. 

6  See  Lord  Brougham,  in  Howard  v.  Digby,  2  CI.  &  Fin.  670,  commenting 
upon  2  Roper  Hus.  &  Wife,  133.  In  this  case  the  whole  subject  receives  ample 
discussion.  ?  2  CI.  &  Fin.  670. 

8  Sugd.  Law  Prop.  170.  See  Peachey  Mar.  Settl.  307 ;  Macq.  Hus.  &  Wife, 
319,  n. 

9  See  Peachey  Mar.  Settl.  303,  and  cases  cited. 
'0  Arthur  v.  Arthur,  11  Ir.  Eq.  511. 

[  259  ] 


*  242  HUSBAND   AND  WIFE. 

The  wife  was  formerly  supposed  also  to  gain  a  title  to 
savings  out  of  her  house-keeping  allowance.^  So  where  the 
husband  allowed  the  wife  to  make  profit  of  butter,  eggs, 
poultry,  and  other  farm  produce,  which  allowance  he  called 
her  pin-money,  it  was  held  that  she  acquired  a  separate  owner- 
ship therein.^  But  these  cases  rest  upon  questionable  author- 
ity.^ And  more  recently  it  has  been  decided  that  where  the 
wife  of  a  farmer,  with  his  knowledge  and  sanction,  deposited 
the  produce  of  the  surplus  butter,  eggs,  and  poultry  with  a 
firm  in  her  own  name,  and  he  called  it  "  her  money,"  and  on 
his  death-bed  gave  his  executor  directions  to  remove  the 
money,  and  do  the  best  he  could  with  it  for  his  wife,  such 
evidence  was  insufficient  to  establish  a  gift  between  them, 
and  that  the  husband  had  made  neither  the  firm  nor  himself 
trustee  for  his  wife.*  In  all  cases  of  this  sort,  the  husband's 
permission  constitutes  an  important  element  of  the  wife's 
title. 

Indeed,  the  well-settled  principle  both  of  law  and  equity 
is  that,  in  absence  of  a  distinct  gift  from  the  husband,  all  the 
wife's  earnings  belong  to  him  and  not  to  herself.  But  by 
recent  statutes  enacted  in  many  of  the  United  States  married 
women  are  allowed  the  benefits  of  their  own  labor  and  ser- 
vices, when  performed  on  their  sole  and  separate  account, 
free  from  all  control  or  inteiference  of  a  husband.^  These 
statutes  vary  somewhat  in  their  terms.  Thus  by  a  Maryland 
statute  the  amount  she  may  so  acquire  is  limited  to  one  thou- 
sand dollars  over  and  above  her  debts.  The  presumptions 
here  concerning  the  wife's  title  to  her  earnings  seem  to 

*  243    be  much  the  same  as  *  in  other  separate  property  pur- 

1  Paul  Neal's  Case,  Prec.  in  Cli.  44,  297.  But  see  Tyrrell's  Case,  Freem. 
304. 

'!■  Slanning  v.  Style,  3  P.  Wms.  337. 
3  See  Macq.  Hus.  &  Wife,  320. 

*  Mews  V.  Mews,  15  Beav.  529.  See  McLean  v.  Longlands,  5  Ves.  78,  cited 
herein  with  approval.  And  see  Rider  v.  Hulse,  33  Barb.  264,  for  a  similar  Amer- 
ican decision. 

*  See  latest  statutes  of  New  York,  Massachusetts,  Rhode  Island,  Maryland, 
and  California.  And  see  Cooper  v.  Alger,  51  N.  H.  172 ;  Fowle  v.  Tidd,  15  Gray, 
94 ;  Tunics  v.  Grover,  57  Me.  586 ;  Meriwether  v.  Smith,  44  Geo.  541. 

[260] 


WIFE'S  SEPARATE  EARNINGS  AND  POWER  TO  TRADE.    *  243 

porting  to  belong  to  her.^  There  is,  however,  apparently 
less  favor  shown  by  our  courts  to  the  legislative  grant  of 
separate  earnings  than  to  that  of  acquisitions  to  a  wife's  sep- 
arate use  from  other  sources  ;  and  still  less,  as  we  shall  soon 
see,  to  statutes  extending  the  wife's  right  of  acquiring  earn- 
ings to  a  permission  to  embark  in  business  on  her  own  ac- 
count. The  presumption  is  said  to  be  that  a  wife's  services, 
rendered  even  to  her  own  mother  on  a  basis  of  compensa- 
tion, were  given  on  the  husband's  behalf.^  And  where  the 
proceeds  of  her  earnings  have  been  so  mixed  up  with  her 
husband's  property  as  not  to  be  easily  distinguishable,  the 
disposition  is  to  regard  the  whole  as  belonging  to  the  hus- 
band.^ It  may  be  added  that,  in  general,  statutes  which 
authorize  married  women  to  hold  property  acquired  by  gift, 
grant,  or  purchase,  from  any  person  other  than  the  husband, 
do  not  carry  the  wife's  earnings  by  implication.* 

Independently  therefore  of  statutes  which  plainly  secure 
to  married  women  their  separate  earnings,  it  is  held  that  an 
agreement  between  the  wife,  with  the  knowledge  and  consent 
of  her  husband,  and  a  third  person,  for  nursing  and  attention, 
the  stipulation  being  that  she  shall  be  paid  what  her  services 
are  reasonably  worth,  gives  to  the  wife  no  title  as  against 
her  husband.^  Nor  does  equity  raise  a  resulting  trust  in  the 
wife's  favor,  where  she  contracted,  with  the  consent  of  lier 
husband,  for  the  purchase  of  a  lot  of  land,  convej^ed  to  him, 
though  she  paid  off  the  mortgage,  given  for  part  of  the  pur- 
chase-money, from  her  own  earnings.^ 

But  where  a  statute  provides  that  property  acquired  by  a 
married  woman  by  her  personal  services  shall  be  her  separate 
property,  and  exempt  from  liability  for  her  husband's  debts, 

1  Raybold  v.  Raybold,  20  Penn.   St.  308;  Elliott  v.  Bentley,  17  Wis.  591; 
Laing  v.  Cunningham,  17  Iowa,  510. 
-  Morgan  v.  BoUcs,  36  Conn.  175. 

3  Quidort  v.  Pergaux,  8  C.  E.  Green,  472 ;  McCluskey  v.  Provident  Institution, 
103  Mass.  300. 

4  Rider  v.  Hulse,  33  B.arb.  264  ;  Iloyt  v.  White,  46  N.  H.  45  ;  Merrill  v.  Smith, 
37  Me.  394;  Grover  v.  Alcott,  11  Mich.  470;  Baxter  v.  Prickett,  27  Ind.  4'JO ; 
Bear  t-.  Hays,  36  111.  280. 

5  Woodbeck  )•.  Havens,  42  Barb.  66.  And  see  Elliott  t>.  Bentley,  17  Wis. 
591 ;  Duncan  v.  Roselle,  15  Iowa,  501  ;  McKarlin  v.  Bresslin,  8  Gray,  177. 

6  Skillman  v.  Skillman,  15  N.  J.  Cli.  478. 

[261] 


*  243  HUSBAND   AND  WIFE. 

money  due  for  lier  services  is  protected  in  the  same  manner 
as  if  the  money  had  been  received.^  And  even  on  general 
principles  of  equity,  the  husband  may  in  this  country,  as  in 
England,  create  in  his  wife  a  separate  estate  in  the  proceeds 
of  her  own  toil ;  the  validity  of  such  a  gift,  as  against  cred- 
itors, being  subject  to  the  same  rules  which  apply  to  other 
voluntary  conveyances.^  So  where  a  married  woman  by  her 
industry  made  money  as  a  basket-maker,  —  thus  sup- 

*  244    plying  her  family  with  *  necessaries  ;  and  was  in  the 

habit  of  lending  out  the  surplus  money,  and  collecting 
it  when  due,  with  her  husband's  knowledge  ;  even  a  court  of 
law  has  liberally  stretched  its  authority  to  protect  her  acts, 
on  the  ground  of  an  implied  agency  from  her  husband.^ 

There  are  statutes  in  England  and  parts  of  this  country, 
which  give  to  the  wife  the  fruits  of  her  lawful  industry,  where 
she  is  deserted  by  her  husband,  or  even  where  he  grossly 
neglects  to  provide  for  the  support  of  his  family ;  and  here 
the  husband's  consent  to  her  sole  employment  being  no  ele- 
ment in  the  case,  she  is  fairly  entitled  to  hold  the  property 
thus  acquired  against  all  but  her  own  creditors.^ 

The  wife's  power  to  carry  on  a  separate  trade  is  another 
topic,  known  long  ago  to  the  law  of  England  ;  and  in  this 
respect  our  American  legislation  of  the  present  day  seems  to 
have  been  somewhat  anticipated.  The  wife's  lawful  power 
to  carry  on  a  trade  on  her  own  account,  independently  of  her 
husband,  like  most  of  her  other  separate  privileges,  is  founded 
at  the  common  law  upon  contracts  made  with  her  in  deroga- 
tion of  the  husband's  marital  rights.  It  appears  that  a  wife, 
desiring  to  go  into  business  on  her  own  account,  makes  an 
agreement  with  her  husband.  When  the  agreement  is  made 
before  marriage  it  will  bind  the  husband  and  his  creditors ; 
when  made  during  the  coverture,  it  binds  the  husband  only, 

1  Whitney  v.  Beckwith,  31  Conn.  596. 

2  Pinkston  v.  McLemore,  31  Ala.  308  ;  Neufville  v.  Thompson,  3  Edw.  Ch.  92  ; 
Barron  v.  Barron,  2i  Vt.  375  ;  Smart  v.  Comstock,  24  Barb.  411.  In  New  York, 
the  wife's  right  to  sue  even  a  firm  to  wliich  her  husband  belongs  for  her  labor 
and  service  is  maintained,  under  the  statutes.     Adams  v.  Curtis,  4  Lans.  164. 

3  White  V.  Oeland,  12  Rich.  308. 

*  Mason  v.  Mitchell,  3  Hurl.  &  Colt.  528;  Black  v.  Tricker,  59  Penn.  St.  13. 

[262  J 


I 


WIFE'S  SEPARATE  EARNINGS  AND  POWER  TO  TRADE.    *  244 

and  is  void  against  his  creditors.^     This  si^ecies  of  contract 
seems  to  have  been  recognized  in  the  common-law  tribunals. 

If,  for  the  purpose  of  enabling  a  married  woman  to  carry 
on  her  separate  trade,  property  be  vested  in  trustees  before 
the  marriage,  the  wife  will  at  law  be  considered  their  agent, 
and  in  that  character  will  have  the  benefit  of  the  property, 
and  enjoy  its  increase  and  profits  independently  of  her  hus- 
band, and  free  from  liability  in  respect  of  his  debts.^  The 
law  here  considers  the  wife  as  the  agent  of  her  own  trustee, 
and  her  possession  as  his  possession. 

The  question  whether  the  trade  be  carried  on  solely  by  the 
wife,  or  jointly  with  her  husband,  is  a  question  of  fact  for  the 
jury.     If  they  find  that  it  is  a  joint  business,  the  stock 
in  trade  *  will  be  subject  to  the  husband's  obligations.^    *  245 
So  the  husband  will  be  liable  for  the  debts,  if  it  appear 
that  he  participated  with  the  wife  in  the  benefits.* 

Separate  trading  was  also  permitted  the  wife  by  the  "  cus- 
tom of  London ;  "  and  herein  she  was  regarded  as  liable  to 
arrest  and  imprisonment  for  debt  without  her  husband,  and, 
moreover,  might  be  declared  a  bankrupt.^ 

Notwithstanding  these  provisions  of  the  law,  it  does  not 
appear  that  separate  trading  in  England  was  ever  very  com- 
mon. No  modern  equity  cases  are  to  be  found  on  this  sub- 
ject.^ The  difficulties  in  the  way  of  establishing  credit,  and 
negotiating  securities  on  the  wife's  sole  behalf,  were  probably 
found  insurmountable,  even  though  married  women  might  be 
found  anxious  to  assume  the  responsibilities  of  trade. 

This  doctrine  of  the  wife's  power  to  trade  comes  up  anew 
in  this  country  of  late  years  with  our  recent  policy  in  favor  of 

•  Macq.  Hus.  &  Wife,  321 ;  2  Brifrlit  Hus.  &  Wife,  292  ;  Lavie  v.  Phillips,  3 
Burr.  1783  ;  2  Roper  Hus.  &  Wife,  1G5,  175,  and  cases  cited.  See  antenuptial 
and  postnuptial  settlements,  Infra. 

-  Jarman  v.  Wooloton,  8  T.  R.  G18;  Macq.  Hus.  &  Wife,  321 ;  2  Bright  IIus. 
&  Wife,  297. 

»  Barlow  v.  Bishop,  1  East,  432 ;  Macq.  Hus.  &  Wife,  322 ;  2  Bright  Hus.  & 
Wife,  297. 

*  Petty  V.  Anderson,  2  Car.  &  P.  38  ;  Macq.  IIus.  &  Wife,  322. 

5  Beard  v.  Webb,  2  B.  &  P.  97.     See  2  Roper  Hus.  &  Wife,  124. 

6  But  see  Talbot  v.  Marshfield,  L.  R.  3  Ch.  G22.  See  comments  in  Macq. 
Hus.  &  Wife,  323,  on  the  cases  cited  in  2  Roper  Hus.  &  Wife,  172,  173. 

[263  J 


*  245  HUSBAND  AND   WIFE. 

the  independence  of  married  women.  And  the  rule  seems  to 
be  well  established  in  the  United  States  that  the  husband,  in 
pursuance  of  a  marriage  contract,  antenuptial  or  postnuptial, 
may  confer  upon  his  wife  the  right  to  trade  for  her  exclusive 
benefit.^  Nor  have  the  American  cases  uniformly  insisted 
upon  formal  contracts  for  this  purpose  between  husband  and 
wife  ;  seemingly  regarding  the  question  as  one  of  mutual 
and  bona  fide  intention  merely.  Thus  the  equity  rule  in  Ver- 
mont is  that  the  wife  shall  hold  the  result  of  her  earnings,  in 
every  case,  against  the  husband  and  his  heirs,  and  generally 
against  his  creditors,  so  long  as  he  allows  her  to  keep  the 
property  separate  from  the  general  mass  of  his  own  estate  ; 
and  this  although  his  own  name  may  be  used  in  the 

*  246    formal  conduct  of  the  business  ;  *  unless  in  the  case  of 

creditors,  this  should  lead  to  a  false  credit  on  the  part 
of  the  liusband.2  And  in  a  recent  case  the  stock  in  a  milli- 
nery shop,  resulting  from  the  wife's  credit  and  her  earnings, 
under  the  sanction  of  her  husband,  was  treated  as  her  sepa- 
rate property,  and  held  liable  for  demands  affecting  it.'^ 

In  Virginia,  a  married  woman  owning  a  separate  property, 
is  allowed,  on  equity  principles,  to  engage  in  trade  with  her 
husband's  consent,  either  on  her  sole  account  or  in  partner- 
ship with  a  third  person ;  and  by  doing  so  she  subjects  her 
separate  estate  to  payment  of  the  business  debts.  And,  as 
against  the  husband  and  his  creditors,  she  is  entitled  to  the 
profits,  so  far,  at  least,  as  they  did  not  accrue  from  labor,  skill, 
or  capital  bestowed  by  himself.* 

So  in  Michigan  the  wife  is  now  permitted  to  keep  a  board- 
ing-house as  her  own  separate  business,  and  uj)on  her  own 
account ;  and  the  same  is  said  of  other  pursuits,  though  the 
courts  of  that  State  seem  disposed  to  restrict  her  to  the  exer- 
cise of  such  business  as  is  usually  carried  on  by  females  and 
consists  largely  and  almost  necessarily  of  female  labor.^     In 

1  Richardson  v.  Estate  of  Merrill,  32  Vt.  27  ;  Tillman  v.  Shackleton,  15  Mich. 
447  ;  Wieman  v.  Anderson,  42  Penn.  St.  311 ;  Duress  v.  Horneffer,  15  Wis.  195 ; 
James  v.  Taylor,  43  Barb.  530  ;  Wilthaus  v.  Ludicus,  5  Rich.  326  ;  Uhrig  v.  Horst- 
man,  8  Bush,  172. 

2  Per  Redfield,  C.  J.,  in  Richardson  v.  Estate  of  Merrill,  32  Vt.  27. 

3  Partridge  v.  Stocker,  36  Vt.  108.  <  Penn  v.  Whiteliead,  17  Gratt.  503. 
5  Tillman  v.  Sliackleton,  15  Mich.  447;  Glover  v.  Alcott,  11  Mich.  471. 

[264] 


WIFE'S  SEPARATE  EARNINGS  AND  POWER  TO  TRADE.  *  2-16 

Pennsylvania,  it  is  decided  that  a  wife  may  trade  with  mer- 
chandise acquired  in  her  own  right,  and  with  the  proceeds  of 
sales  buy  other  goods  to  be  held  and  traded  with,  which  con- 
tinue exempt  from  seizure  for  her  husband's  debts,  though 
she  may  not  be  a  feme  sole  trader.^  In  Wisconsin,  where  a 
married  woman,  with  the  assent  of  her  husband,  engages  in 
business  as  a  sole  trader,  and  contracts  a  debt  for  goods  to 
carry  it  on,  verbally  pledging  the  faith  of  separate  estate,  her 
whole  separate  estate  must  answer  for  it.^  But  earnings  ac- 
quired from  his  business  managed  in  his  absence,  are  not  hers 
independently  of  his  gift.^  And  in  Indiana  it  is  said  that 
while,  as  an  abstract  proposition,  the  law  may  not  authorize 
a  married  w^oman  to  enter  into  a  contract  of  partnership,  yet 
if  she  does  make  such  contract,  and  in  pursuance  thereof 
places  her  separate  funds  in  the  firm  of  wliicli  she  is  by  con- 
tract a  partner,  such  funds  cannot  while  there  be  made  subject 
to  her  husband's  debts.'^ 

The  husband's  assent  is  in  general  necessary.  It  is  held  in 
New  York  that  the  husband's  assent  does  not  carry  with  it  an 
implied  authority  to  make  an  assignment  for  the  benefit  of 
creditors  of  that  business.^  But  in  New  Jersey  a  wife.  Who 
has  been  permitted  by  her  hu^toand  to  trade,  may 
transfer  her  stock  *  in  payment  of  notes  given  for  the  *  247 
purchase-money.^  And  in  South  Carolina  a  feme  sole 
trader  is  bound  to  a  third  person  by  her  indorsement  to  him  of 
a  note  drawn  by  her  husband  payable  to  herself.''' 

The  conclusion  to  be  drawn  from  this  class  of  cases  is  that, 
modern  policy  having  once  conferred  upon  the  wife  large 
powers  both  as  to  the  acquisition  and  enjoyment  of  separate 
propert3s  as  well  as  the  right  to  invest  and  reinvest  the  same, 
married  women  naturally  sought  business  opportunities  with 
their  capital ;  and  thus  the  courts  were  drawn  into  the  prac- 
tical concession  of  trading  privileges,  and  hence  trading  liabili- 

1  Wieman  v.  Anderson,  42  Penn.  St.  311 ;  Manderbach  v.  Mock,  29  Penn. 
St.  43.  But  see  Hoffman  v.  Toner,  49  Penn.  St.  231.  See  McGregor  v.  Sibley, 
69  Penn.  St.  388,  as  to  employment  of  her  husband  as  her  selling  agent. 

2  Todd  V.  Lee,  16  Wis.  480.  »  Stimson  v.  White,  20  Wis.  562. 

*  Mayhew  ?-.  Baker,  15  Ind.  254.         *  Cropsey  v.  McKinney,  30  Barb.  47. 

^  Green  i'.  Pallas,  1  Beasl.  267. 

'  Wilthaus  V.  Ludicus,  5  Rich.  326.     And  see  Stimson  v.  White,  xupra. 

[205] 


*247  HUSBAND  AND  WIFE. 

ties,  while  professing  to  deny  to  the  wife  on  general  principles 
the  right  to  engage  in  mercantile  pursuits  without  more 
explicit  statute  provisions  to  that  effect. ^  Where  it  is  clearly 
for  the  wife's  advantage  to  reap  the  benefits  of  her  business, 
the  disposition  of  the  law  to  yield  them  must  be  strong  ;  but 
where,  as  must  often  be  the  case,  she  speculates  imprudently 
and  becomes  deeply  involved,  the  court  is  perplexed  though 
doubtless  anxious  to  relieve  her. 

On  the  other  hand,  the  earlier  American  cases  seem  to  have 
regarded  with  very  little  favor  the  doctrine  that  the  wife, 
while  living  with  her  husband,  could  carry  on  a  business  of 
her  own,  without  rendering  her  husband  liable  and  subjecting 
her  stock  in  trade  to  his  debts.^  And  the  same  may  be  said, 
at  this  day,  of  States  whose  legislatures  have  practically 
io-nored  the  rights  of  married  women.^  In  North  Carolina 
the  whole  doctrine  of  separate  trading  is  expressly  repudiated.* 
And  while,  in  general,  the  husband's  gift  may  sustain  the 
wife's  claim  of  profits  accruing  from  her  separate  trade ;  yet 
the  better  opinion  is  that  a  business  carried  on  by  a  husband 
and  wife  in  co-operation,  his  labor  and  skill  uniting  with  hers, 
must  be  considered  as  his  business  so  far  as  his  creditors  are 
concerned,  and  fail  accordingly  of  protection  for  her  especial 
benefit.^ 

The  recent  married  women's  acts  in  many  of  the  United 
States  have  enlarged  and  more  fully  established  the  wife's 
power  to  trade  on  her  own  account ;  and  the  profits  of  her 
business  are  thus  secured  to  her  sole  and  separate  use.^  She 
is  thus  enabled  to  use  her  separate  property ;  and  she 
*  248    *  may  even  enter,  in  some   States,  into  general  i^art- 

1  The  Vermont  equity  rule,  indicated  in  a  former  section,  though  not  an  un- 
reasonable one,  goes  far  bej^ond  all  the  English  precedents  cited  to  support  it. 

2  McKinley  v.  McGregor,  3  Whart.  378,  and  cases  cited. 

3  Godfrey  v.  Brooks,  5  Harring.  396. 

*  McKinnon  v.  McDonald,  4  Jones  Eq.  1. 

5  See  National  Bank  r.  Sprague,  5  C.  E.  Green,  13;  Cramer  v.  Reford,  2  G. 
E.  Green,  383.  But  see  Pennt-.  Whitehead,  supra  ;  Bellows  i'.  Rosenthal,  31  Ind. 
116. 

*  Such  statutes  are  to  be  found  in  New  York,  Maine,  New  Hampshire,  Massa- 
chusetts, Kansas,  New  Jersey,  Iowa,  and  other  States.  And  see  Mitchell  v. 
Sawyer,  21  Iowa,  582. 

[266] 


WIFE'S  SEPARATE  EARNINGS  AND  POWER  TO  TRADE.  *  248 

nership  for  trade.  But  the  statutes  of  Massachusetts  require 
her  to  first  register  her  intention,  thus  affording  a  very  rea- 
sonable safeguard  against  fraud  and  imposition.^  In  general, 
what  the  wife  acquires  under  these  statutes  is  declared  to  be 
exempt  from  liability  for  the  husband's  debts,  and  not  sub- 
ject to  his  control  or  interference. 

In  Massachusetts,  where  the  statutory  doctrine  of  the  wife's 
power  to  trade  and  acquire  separate  earnings  has  already 
received  a  considerable  exposition  in  the  courts,  it  is  made  a 
rule  that  the  wife's  contracts  regarding  her  separate  business 
are  binding  on  her  separate  property,  and  that  the  husband  is 
not  answerable  for  her  solvency.  And  where  a  married  Avoman 
carries  on  the  business  of  keeping  boarders  on  her  sole  and 
separate  account,  and  has  purchased  goods  to  be  used  in  her 
business  on  her  sole  credit,  she  alone  is  liable,  although  her 
husband  lived  with  her  when  the  goods  were  purchased  ;  and 
her  own  acts  and  admissions  in  reference  to  the  business  are 
competent  evidence  against  her.^  But  the  earnings  of  the 
wife  are  still,  prima  facie,  the  property  of  her  husband ;  and 
where  she  buys  articles  of  family  furniture  partly  from  her 
own  earnings  and  partly  w^ith  means  furnished  by  her  hus- 
band, it  is  to  be  supposed,  in  the  absence  of  further  proof  to 
the  contrary,  that  she  has  no  exclusive  title  to  any  portion 
of  the  property.^  The  statutes  permit  a  married  woman  to 
form  a  copartnership  in  business  with  third  parties,  though 
not  with  her  husband  ;  and  this  exception  the  court  has  so 
strictly  enforced,  that  her  transactions  as  a  member  of  any 
firm  in  which  her  husband  is  interested  as  a  partner  are  utterly 
void,  whether  to  her  advantage  or  injury,  inasmuch  as  she 
cannot  contract  with  her  husband  singly  or  jointly."^ 

1  Mass.  Stats.  18G2,  c.  198.  This  statute  requirement  does  not  apply  to 
keeping  a  colt  for  use,  nor  to  buying  materials  to  build  a  house  for  the  family. 
Proper  v.  Cobb,  104  Mass.  589.  See  further  as  to  this  statute,  Feran  v.  Ru- 
dolphsen,  106  Mass.  471 ;  Cahill  v.  Campbell,  105  Mass.  40.  In  Kentucky, 
authority  to  trade  must  be  given  the  wife  by  a  chancellor.  Uhrig  i\  Horstman, 
8  Bush,  172. 

'  Parker  v.  Simonds,  1  Allen,  258.  See  language  of  the  statute  herein  cited, 
to  the  effect  that  she  shall  be  treated  as  &  feme  sole,  in  respect  to  such  property. 

»  Kelly  V.  Drew,  12  Allen,  107.     See  Woodcock  v.  Reed,  5  Allen,  207. 

*  Lord  V.  Parker,  3  Allen,  127  ;  Edwards  v.  Stevens,  ib.  315  ;  Plunier  v.  Lord, 

[2G7] 


*  248  HUSBAND  AND   WIFE. 

The  New  York  doctrine  is  that  where  the  husband 

*  249    permits  *  his  wife,  without  objection,  to  hold  herself 

out  before  the  world  as  transacting  business  on  her  sole 
and  separate  account,  though  he  may  advance  money  to  her 
in  her  business,  the  title  of  property  purchased  therewith,  as 
against  the  husband,  vests  in  the  wife.^  And  as  against  her 
husband's  creditors,  she  may  make  him  managing  agent,  let 
him  conduct  the  business  in  her  name,  while  she  furnishes  the 
capital  from  her  own  means  and  takes  the  profits  to  herself ; 
pajdng  the  managing  agent  what  she  thinks  best  without  sub- 
jecting the  stock  in  trade  to  his  debts.^  So  it  is  held  that  a 
wife  by  allowing  chattels  belonging  to  her,  and  which  remain 
m  specie^  to  be  employed  by  her  husband  in  carrying  on  a 
business  for  their  common  benefit,  does  not  devote  them  to 
her  husband,  so  as  to  render  them  liable  for  his  debts.^  The 
courts  of  that  State  intimate,  however,  that  there  should  be 
no  fraud  in  such  transactions ;  which  otherwise  the  reader 
might  doubt,  from  finding  such  latitude  given  to  the  wife's 
business  dealings.  We  should  add  that  it  is  deemed  a  question 
of  fact  for  tlie  jury,  whether  upon  evidence  a  business  is  in 
truth  the  wife's,  with  the  husband  acting  merely  as  her  agent, 
or  this  agency  is  a  cover  for  the  husband's  business  to  keep  his 
property  from  his  own  creditors.^  And  that  under  some  cir- 
cumstances a  husband's  agency  from  the  wife  will  be  consid- 
ered revoked  and  the  business  subsequently  carried  on  for  his 
benefit,  and  not  hers  alone .^ 

Under  statutes  which  permit  the  wife  to  trade  separately, 
it  is  held  in  New  Jersey  that  her  debts  can  be  collected  from 
her  in  equity.^  In  Maine,  the  husband  cannot  be  sued  for 
goods  and  chattels  furnished  his  wife  by  third  persons  in  the 
course  of  her  business,  even  though  such  purchases  were 
made  by  her  with  his  knowledge  and  consent,  and  although 
she  appropriated  part  of  the  proceeds  to  the  support  of  her 

7  Allen,  481.     As  to  husband's  liability  on  a  lease,  though  professing  to  under- 
let for  a  wife's  business,  see  Knowles  v.  Hull,  99  Mass.  562. 

1  Samniis  v.  McLaughlin,  35  N.  Y.  647. 

2  Buckley  v.  Wells,  33  N.  Y.  518. 

3  Sherman  v.  Elder,  24  N.  Y.  381  ;  Barton  v.  Beer,  35  Barb.  78. 

*  Abbey  V.  Deyo,  44  N.  Y.  343.  5  Hamilton  v.  Douglas,  46  N.  Y.  818. 

6  Wheaton  v.  Phillips,  1  Beasl.  221. 

[268] 


WIFE'S  SEPARATE  EARNINGS  AND  POWER  TO  TRADE.  *  2-49 

husband  and  family.^  But  where  the  purchase  and  sales  are 
made  with  his  knowledge  and  consent,  and  he  participates  in 
the  profits  of  the  business,  knowing  them  to  Ije  such,  and  that 
she  professed  to  act  for  him,  it  may  be  inferred  that  the 
purchases  were  made  on  the  husband's  credit.^  In  Mis- 
souri, a  wife  went  into  the  millinery  business  and  bought 
goods  on  her  sole  credit,  and  her  husband  having  no  partici- 
pation whatever  in  the  concern,  it  was  held  that  he  was  not 
responsible  for  the  debts  so  contracted  by  her ;  and  in  this 
case  it  appeared  that  the  business  was  carried  on  against  his 
consent.^ 

On  the  whole,  it  would  still  appear  to  be  the  general  rule, 
notwithstanding  the  late  statutes,  that  a  wife  may  not,  as 
against  the  world,  become  her  husband's  partner,  nor  even 
join  her  labor  and  capital  to  his  in  one  and  the  same  business 
enterprise.* 

*  By  the  civil  code  of  France,  the  wife  may  carry  on  *  250 
a  trade  independently  of  her  hiiisband.^     So  the  wife 

may  l)e  a  separate  trader  under  the  custom  of  Paris.^  And  a 
similar  right  is  recognized  by  the  laws  of  Spain  and  other 
European  countries.''' 

From  the  civil,  rather  than  the  common  law,  are  derived 
those  property  rights  of  married  women  which  are  recognized 
in  Louisiana,  California,  and  others  of  the  South-western 
States,  originally  colonized  by  the  Spanish  and  French. 
Thus  the  Louisiana  code  i-ecognizes  the  capacity  of  the  wife 
to  carry  on  separate  trade,  or,  as  it  is  said,  to  constitute  herself 
a  public  merchant,  provided  she  act  bona  Jide,  and  have  an 
active  agency  in  the  concern.^  And  in  California  there  are 
recent  statutes,  under  which  it  is  held  that  married  women, 
as  sole  traders,  may  buy  on  credit,  and  execute  all  necessary 

'  Colby  V.  Lamson,  39  Me.  119. 

2  Oxiiard  v.  Swanton,  39  Me.  125. 

3  Tuttle  V.  Iloag,  46  Mis.  38.     And  see  Smitli  v.  Thompson,  30  Conn.  175. 

*  Wilson  V.  Loomis,  55  111.  352 ;  Montgomery  v.  Sprankle,  31  Ind.  113  ;  Lord 
V.  Parker,  3  Allen,  127. 

5  Code  Civil,  art.  220;  1  Burge  Col.  &  For.  Laws,  219. 

«  1  Burge  Col.  &  For.  Laws,  218.  1  lb.  226,  420,  698. 

8  La.  Code,  art.  128;  Christensen  v.  Stumpf,  16  La.  Ann.  50. 

[  ^69  1 


*  250  HUSBAND  AND  WIFE. 

instruments  of  purchase.^  Not  only  is  the  husband  not  for- 
bidden there  to  become  a  partner,  but  the  phiin  intention  of 
the  law  is,  that  he  may  furnish  part  of  the  capital  stock. 
The  wife  may  sue  alone  in  such  business,  and  may  employ 
her  husband  to  manage  it ;  and  even  though  the  trade  be 
unsuitable  to  her  sex,  fraud  upon  the  husband's  creditors 
will  not  be  conclusively  presumed.^  In  other  South-western 
States,  separate  trading  seems  to  be  permitted  on  similar 
principles.^ 

1  Camden  v.  Mullen,  29  Cal.  564 ;  Reading  v.  Mullen,  31  Cal.  104. 

2  Guttman  v.  Scannell,  7  Cal.  455. 

3  See  Atwood  v.  Meredith,  37  Miss.  635 ;  Oglesby  v.  Hall,  30  Geo.  386. 


[270] 


WILLS    OF   MARRIED   WOMEN.  *  25 1 


*  CHAPTER  XIV.  *2ol 

THE   WILLS   OF   MARRIED   WOMEN. 

Married  women  cannot  at  the  common  law  make  a  valid 
will.  Their  incapacity  in  this  respect  results  partly  from  the 
general  disabilities  of  coverture,  and  jiartly  from  that  common- 
law  policy  which  would  preserve  unimpaired  the  husband's 
marital  control  and  right  of  succession. 

So,  too,  the  marriage  of  2^  feme  sole  is  such  an  entire  change 
in  her  condi^on  and  relations,  that  it  is  generally  held  to  work 
a  revocation  of  her  will  executed  before  that  event. ^  And 
the  effect  was  the  same,  even  where  she  survived  her  hus- 
band, and  was  thus  restored  to  her  fprmer  condition. ^ 

On  the  other  hand,  the  marriage  of  a  man  has  at  the  com- 
mon law  no  such  effect  upon  his  right  of  testamentar}"  dispo- 
sition. He  can  make  a  will  of  his  own  property,  whether 
married  or  single.  Nor  is  marriage  of  itself  a  revocation  of 
his  will  previously  executed.  But  marriage  and  the  birth  of 
a  child  is  regarded  as  having  sucli  an  effect  upon  his  condition 
and  relations  in  life,  that  a  prior  wall  is  thereby  revoked.^ 
Even  this  implied  revocation,  so  far  as  concerned  his  real 
estate,  was  not  conceded  in  the  English  courts  without  a 
struggle."^ 

To  the  wife's  testamentary  incapacity  there  are  some  excep- 
tions.    Thus  by  the  English  law  she  may  make  a  valid 
will  of  *  personalty,  with  the  consent  of  her  husband.    *  252 
But  this  is  upon  the  condition  that  he  survives  her, 

1  Forse  &  ITerabling's  Case,  30  &  31  Eliz.,  4  Co.  Rep.  GO,  61  ;  Ilodsden  v. 
Lloyd,  2  Bro.  C.  C.  534. 

2  1  Jarra.  Wills,  Eng.  ed.  1801,  114;  Cotter  r.  Layer,  2  P.  Wms.  G23,  024 ;  1 
Redf.  Wills,  293. 

3  1  Redf.  Wills,  293-302,  and  authorities  cited ;  1  Jarm.  Wills,  Eng.  cd.  1861, 
115. 

*  Johnston  v.  Johnston,  1  Phillim.  447  ;  Marston  v.  Fox,  8  Ad.  &  El.  14. 


*  252  HUSBAND  AND   WIFE. 

and  does  not  elect,  after  her  death,  to  disaffirm  his  consent 
already  given.  The  will  of  a  married  woman,  when  pre- 
sented for  probate,  is  treated  as  a  mere  nullity.^  Bnt  where 
it  is  alleged  to  have  been  made  with  the  assent  of  the  husband, 
the  court  assumes  jurisdiction.  Hence  the  wife's  right  in 
such  cases  is  founded  upon  the  husband's  gift,  or,  as  it  is 
said,  the  waiver  of  his  own  right  to  administer  for  his  own 
benefit.^  And  if  the  husband  die  before  his  wife,  her  will  is 
void,  so  far  as  it  could  have  derived  any  validity  from  his 
consent.^  And  his  consent  to  the  particular  will,  it  would 
appear,  does  not  pass  subsequently  acquired  property.^ 

In  order  to  establish  a  will  by  the  husband's  consent,  it 
should  be  shown  that  the  husband  has  consented  to  the  par- 
ticular will  that  his  wife  has  made.  His  general  assent  that 
she  may  make  a  will  is  not  deemed  sufficient.^  But  his  con- 
sent to  a  particular  will  may  be  inferred  from  circumstances ; 
and  if  after  his  wife's  death  he  acts  upon  the  will,  or  once 
agrees  to  it,  he  is  not  considered  at  liberty  to  retract  his 
assent  afterwards,  and  oppose  the  probate.^  Such  acts  as 
expressing  gratification  at  his  wife's  selection  of  an  executor, 
or  recommending  him  to  particular  places  to  procure  suitable 
preparations .  for  the  burial,  may  constitute  a  conclusive  pre- 
sumption of  assent  after  the  wife's  death  ;  at  least,  if  the 
executor  has  been  thereby  induced  to  act  under  the  instru- 
ment.'^ And  recently  it  has  been  decided  that  he  cannot 
withdraw  his  assent  before  probate,  after  giving  the  sole 

*  253    legatee  a  written  memorandum  containing  his*  sanc- 

tion of  the  will,  in  order  to  borrow  it  for  an  alleged 
particular  purpose.^ 

The  rule  is  general  in  this  country  that  the  husband  may 

1  Tucker  v.  Inman,  4  M.  &  G.  1049 ;  Fane,  Ex  parte,  16  Sim.  406. 

2  1  Wnis.  Ex'rs,  45,  49 ;  1  Redf.  Wills,  25  ;  Stevens  v.  Bagwell,  15  Ves.  156. 

3  1  Rodf.  Wills,  25.  *  lb. ;  1  Wms.  Ex'rs,  49. 

5  1  Wms.  Ex'rs,  44;  Rex  v.  Bettesworth,  2  Stra.  891.  And  see  Kurtz  v.  Say- 
lor,  20  Penn.  St.  215. 

«  1  Wms.  Ex'rs,  44  ;  Brook  v.  Turner,  2  Mod.  170  ;  Maas  v.  Sheffield,  10  Jur. 
417  ;  1  Rob.  Ecc.  364. 

Mb. ;  1  Redf.  Wills,  24. 

8  Maas  V.  Slieffield,  10  Jur.  417  ;  1  Rob.  Ecc.  364.  But  see  Van  Winkle  v. 
Schoonmaker,  15  N.  J.  Ch.  384,  where  the  doctrine  is  asserted  that  the  husband 
may  withdraw  his  assent  at  any  time  before  probate. 

[272] 


WILLS   OF  MARRIED   WOMEN.  *  253 

allow  his  wife  to  make  a  valid  will  of  her  personal  estate,  and 
that  his  assent  cannot  be  revoked  after  probate  of  the  will.^ 

Another  class  of  so-called  exceptions  to  the  wife's  incapac- 
ity is,  when  she  takes  property  in  character  of  executrix,  and 
her  will  is  confined  to  matters  and  things  which  she  takes  in 
that  character  ;  in  which  case  she  may  make  a  will  without 
the  husband's  assent,  and  the  ecclesiastical  or  corresponding 
court  assumes  jurisdiction.^  But  if  the  wife  had  before  mar- 
riage reduced  to  possession  personal  chattels,  to  which  she 
was  entitled  as  executrix,  the  right  of  the  husband  attaches, 
and  the  wife  cannot  dispose  of  them  by  will.^  Since  this  ex- 
ception does  not  concern  j)roperty  to  which  the  wife  takes  a 
beneficial  title,  it  can  hardly  be  called  an  exception  at  all. 

A  third  class  of  exceptions,  recognized  in  England,  is  where 
personal  property  is  given  or  settled,  or  is  agreed  to  be  given 
or  settled  to  the  wife's  separate  use.  /  In  such  a  case  the  wife 
may  dispose  of  such  property  to  the  full  extent  of  her  inter- 
est, although  no  particular  form  is  prescribed  in  the  instru- 
ment creating  the  trust.  This  follows  as  an  incident  to  the 
right  of  beneficial  enjoyment.  It  makes  her  right  of  disposi- 
tion complete.^  "  I  have  always  taken  this  ground," 
says  Lord  Thurlow,  *  of  this  class  of  cases,  "  that  per-  *  25i 
sonal  property,  the  moment  it  can  be  enjoyed,  must  be 
enjoyed  with  all  its  incidents."  ^  And  as  to  the  wife's  sepa- 
rate estate,  savings  out  of  allowance  may  be  bequeathed  by 


1  Cutter  V.  Butler,  5  Fost.  343 ;  Fisher  v.  Kimball,  17  Vt.  323 ;  George  v. 
Bussing,  15  B.  Monr.  558  ;  Wagner  v.  Ellis,  7  Penn.  St.  413 ;  Lee  v.  Bennett,  31 
Miss.  119  ;  Newlin  v.  Freeman,  1  Ired.  Law,  614.  As  to  the  method  of  express- 
ing assent,  see  Grimke  v.  Grimke,  1  Desaus.  3G6 ;  Cutter  v.  Butler,  5  Fost.  343  ; 
1  Redf.  Wills,  29 ;  Kurtz  v.  Saylor,  20  Penn.  St.  205.  The  husband's  covenant 
in  a  marriage  settlement  will  repel  his  riglit  of  administration.  Newlin  i'.  Free- 
man, 1  Ired.  514. 

-  Tucker  v.  Innian,  4  M.  &  G.  1076. 

3  Scammell  v.  Wilkinson,  2  East,  552 ;  1  Wms.  Ex'rs,  44  ;  1  Redf.  AVills,  23  ; 
Hodsden  v.  Lloyd,  2  Bro.  C.  C.  534. 

•*  Fettiplace  v.  Gorges,  1  Ves.  Jr.  46;  Lord  Eldon,  in  Rich  v.  Cockell,  9  Ves. 
375;  1  Redf.  Wills,  23;  1  Wms.  Ex'rs,  48,  and  English  cases  cited. 

5  Fettiplace  v.  Gorges,  1  Ves.  Jr.  46.     And  see  p.  2G1. 

18  [  273  ] 


*  254  HUSBAND  AND  WIFE. 

■will  as  well  as  the  capital ;  for  this,  too,  is  separate  estate.^ 
But  it  should  be  borne  in  mind  that  as  to  her  right  of  dispo- 
sition, a  married  woman  is  a  feme  sole  sub  modo  only,  and  is 
limited  by  the  terms  of  the  gift  or  settlement  from  which  her 
estate  is  derived.^ 

There  is  no  reason  for  distinguishing  between  real  and  per- 
sonal estate  settled  to  the  wife's  separate  use ;  the  excej)tion 
ought  to  embrace  both  kinds  of  property.^  But  the  English 
cases  for  some  time  manifested  a  doubt  on  this  point,  and  the 
testamentary  jus  disponendi  was  thought  not  so  clear  in  the 
case  of  separate  real  estate,  as  of  separate  personalty.*  The 
recent  case  of  Taylor  v.  Mead  would  appear  to  set  this  doubt 
at  rest.^  In  this  case  the  wife  had  lands  conveyed  in  trust  to 
her  separate  use,  with  a  power  given  her  to  appoint  it  by  any 
instrument  in  writing,  ^'^  to  be  by  her  signed,  sealed,  and  de- 
livered "  after  a  certain  manner  ;  the  formalities  prescribed 
being  greater  than  the  statute  of  wills  required  for  testa- 
mentary dispositions.  The  p'roperty  was  limited  over  to 
others  in  default  of  such  appointment.  She  made  an  instru- 
ment in  writing,  which  conformed  to  the  statute  of  wills,  but 
whic'h,  not  being  under  seal,  was  not  in  accordance  with  the 
power  given  her.  It  was  decided  that  the  instrument  was 
defective  as  the  execution  of  a  power  of  appointment ;  but 
that  it  was  a  valid  devise,  such  as  she  had  the  right  to  make, 
of  estate  settled  to  her  sole  and  separate  use.^ 

*  255        *  A  married  woman's  right  to  make  a  will  is  further 

recognized  in  cases  where  her  husband  is  dead  at  the 
law.     As  where  he  has  been  banished  for  life."     Or  is  trans- 

1  Brooke  v.  Brooke,  25  Beav.  342.  But  as  to  pin-money,  see  Barrack  j;. 
M'Culloch,  3  Kay  &  Johns.  Ill,  and  last  chapter. 

2  See  ch.  12,  supra. 

3  1  Jarm.  Wills, .ed.  1861,  34,  35;  per  Lord  Lyndhurst,  Baggett  v.  Meux,  1 
Ph.  628. 

4  Harris  v.  Mott,  14  Beav.  169;  Churchill  v.  Dibben,  9  Sim.  447,  n. 
6  10  Jur.  N.  8.  127  ;  overruling  Buckell  v.  Blenthorne,  5  Hare,  131. 

<>  lb.  And  the  Vice-Chancellor  has  decided  that  her  devise  is  equally  valid, 
though  the  property  was  given  to  her  separate  use,  without  the  intervention  of 
trustees.     Hall  v.  Waterhouse,  11  Jur.  n.  s.  361. 

"  Countess  of  Portland  v.  Progers,  2  Vern.  104 ;  Compton  v.  Collinson,  2 
Bro.  C.  C.  377. 

[274] 


WILLS  OF   MARRIED   WOMEN.  *  255 

ported  for  life.^  Or  is  an  alien  enemy .^  For  in  such  cases 
she  is  no  long'er  regarded,  as  under  the  disabilities  of  cover- 
ture.  And  some  writers  have  thought  that  while  a  husband's 
marital  rights  are  suspended,  as  by  his  temporary  banishment, 
his  wife  ought  to  be  able  to  make  a  valid  will  of  property 
acquired  by  her  in  the  mean  time.^ 

If  a  wife  acquires  any  property  after  her  husband's  death, 
it  cannot  pass  by  a  will  made  during  her  coverture,  though 
by  the  consent  of  her  husband ;  for  at  the  time  of  making  the 
will  she  was  intestable  as  to  that  property.* 

Married  women  were  expressly  excepted  from  the  statute 
of  wills,  34  &  35  Hen.  VIII.  c.  5  ;  though  no  new  disability 
was  thereby  created,  since  they  had  been  regarded  as  incapa- 
ble of  executing  a  will  at  a  much  earlier  date.  The  present 
English  statute  of  wills,  1  Vict.  c.  2j>^§  8,  provides  that  "  no 
will  made  by  any  married  woman  shall  be  valid,  except  such 
will  as  might  have  been  made  by  a  married  woman  before  the 
passage  of  this  act."  But  the  exceptions  have  so  multiplied 
upon  the  prohibition  of  late  years  as  to  constitute  of  them- 
selves a  new  rule. 

So  by  the  recent  English  statute,  wills  are  held  to  be 
absolutely  revoked  by  the  subsequent  marriage  of  the  testa- 
tor, whether  made  by  a  man  or  woman,  unless  such  will  be 
made  in  execution  of  certain  specified  powers ;  and  it  is  fur- 
ther provided  that  no  will  shall  be  revoked,  by  any 
presumption  of  intention  *  on  the  ground  of  an  altera-  *  256 
tion  of  circumstances.^  Thus  again  is  a  mass  of  legal 
learning  swept  away  and  another  opening  made  towards  the 
equality  of  the  sexes. 

In  this  country,  the  great  revolution  which  has  been  effected 
in  the  propert}'  rights  of  married  women  leaves  its  traces  upon 

1  Newsome  v.  Bowyer,  3  P.  Wins.  37 ;  Goods  of  Martin,  15  Jur.  G86 ;  Atlee 
V.  Hook,  23  L.  J.  Ch.  77G. 

-  Deerly  v.  Mazarine,  1  Salk.  IIG. 

«  1  Jarm.  Wills,  ed.  1861,  35;  Ex  parte  Franks,  1  Moore  &  Sc.  11.  But  see 
Coombs  V.  Queen's  Proctor,  16  Jur.  820. 

*  Scammell  v.  Wilkinson,  2  East,  656.  6  i  Redf.  Wills,  297. 

[275] 


*  256  HUSBAND   AND   WIFE. 

their  testamentary  privileges.  The  principles  indicated  in 
the  married  women's  acts,  though  not  uniformly  expressed  in 
clear  and  unambiguous  language,  is  that  the  wife  may  devise 
or  bequeath,  by  her  sole  will,  whatever  separate  property  the 
statutes  secure  to  her ;  and  that  such  will  is  valid  without 
the  joinder  or  assent  of  her  husband.^ 

In  some  States  the  capacity  of  married  women  to  execute  a 
valid  will  seems  to  have  been  conferred  by  implication.  The 
statutes  of  Vermont  give  them  the  power  to  devise  their  real 
estate  by  last  will  and  testament ;  and  since  equity  has  given 
so  liberal  a  scope  to  their  powers  over  separate  property,  it 
would  appear  that  they  may  make  a  valid  bequest  of  separate 
chattels  likewise,  without  the  concurrence  of  their  husbands, 
and  as  part  of  the  jus  disiJonendiP'  But  in  States  which  draw 
the  doctrine  of  separate  use  from  their  own  local  legis- 

*  257    lation  a  more  stringent  *  rule  might  be  enforced.     The 

whole  subject  has  as  yet  received  little  attention  in  the 
courts.^ 


1  Such  express  provisions  are  to  be  found  in  the  laws  of  Maine,  New  Hamp- 
shire, Massachusetts,  Hhode  Island,  New  York,  Pennsylvania,  Ohio,  Indiana, 
Wisconsin,  and  other  States.  The  language  of  these  statutes  is  sometimes 
restricted  to  the  wife's  "  separate  "  property  ;  in  otlier  States,  the  word  "  sep- 
arate" is  not  employed.  Some  States  employ  the  word  "devise,"  and  omit 
the  word  "  bequeath ; "  thus  suggesting  the  inquiry  whether  the  legislature 
meant  that  the  wife  could  dispose  of  her  lands,  but  not  her  chattels.  Certain 
rights  of  the  husband  are  found  to  be  expressly  reserved  in  many  of  these 
acts  ;  and  in  Massachusetts  it  is  provided  that  the  wife  cannot  deprive  her 
husband  of  more  than  one-half  her  personal  estate  without  his  consent  in  writ- 
ing. In  Ohio,  it  is  declared  that  the  will  of  nfeme  sole  is  not  revoked  by  her 
subsequent  marriage.  Some  legislatures  have  manifested  special  opposition  to 
the  husband's  influence  over  the  wife's  disposition.  The  laws  of  Pennsylvania, 
for  instance,  expressly  forbid  him  from  executing  the  will  as  a  witness.  And  it 
would  appear  that  under  the  New  Hampshire  statute  the  husband  cannot  receive 
any  benefit  under  his  wife's  devise  of  her  separate  real  estate. 

2  See  Caldwell  v.  Renfrew,  33  Vt.  213 ;  Holmes  v.  Holmes,  27  Vt.  765. 

•*  In  Virginia,  and  the  Southern  Atlantic  States  generally,  as  well  as  Alabama, 
the  doctrine  of  the  wife's  testamentary  capacity  seems  to  be  founded  upon  the 
earlier  English  cases.  But  in  these  and  some  other  States  which  borrow  largely 
from  the  cliancery  jurisprudence  of  England,  perhaps  the  wife  at  this  day  would 
be  allowed  to  devise  and  bequeatii  property  duly  settled  to  her  separate  use, 
should  such  cases  occur.  See  Burton  v.  HoUey,  18  Ala.  408  ;  Porcher  v.  Daniel, 
13  Kich.  349;  Michael  v.  Baker,  12  Md.  158.  It  has  been  perceived  that  this 
right  of  testamentary  disposition,  as  incidental  to  the  wife's  beneficial  enjoyment 

•      [  276  ] 


WILLS   OF   MARRIED   WOMEN.  *  257 

But  there  are  already  some  decisions  sustaining  the  wife's 
right  to  dispose  by  her  will,  duly  executed,  of  real  estate  held 
to  her  sole  and  separate  use.  And  she  may  even,  in  certain 
States,  cut  off  her  husband's  right  of  curtesy,  by  observing 
the  statute  formalities  of  execution  ;  in  Massachusetts,  for 
instance,  by  a  will  executed  with  her  husband's  assent ;  in 
Illinois,  without  such  assent.^ 

It  is  well  understood  that,  by  the  Roman  civil  law,  a  mar- 
ried woman  possessed  the  same  testamentary  capacity  in  all 
respects  as  a  feme  soleP"  And  such  is  the  law  in  France, 
Holland,  Spain,  and  the  European  countries  generally .^  In 
Scotland,  the  wife  is  permitted  to  bequeath  her  share  of  the 
common  goods,  even  without  the  husband's  assent.*  The 
early  policy  of  England  as  to  wills  seems  in  truth  peculiar  to 
that  country.  For  Voet  and  other  publicists  have  declared 
that,  although  the  wife  should  not  be/ffllowed  to  make  a  con- 
tract without  the  consent  of  her  husband,  yet  she  ought  to 
be  permitted  to  make  a  will,  because  it  does  not  take  effect 
until  the  marital  authority  has  ceased.'^ 

In  Mississippi,  it  is  held  that  the  wife's  testamentary  dis- 
position of  her  personal  chattels,  with  the  assent  of  her  hus- 

of  lier  separate  property,  has  been  but  gradually  conceded  in  England,  and  that 
the  beneficial  rule  for  a  long  time  was  supposed  to  apply  to  her  personal  estate 
simply. 

»  Sanborn  v.  Batchelder,  51  N.  H.  426  ;  Silsby  v.  Bullock,  10  Allen,  94  ;  Pool 
V.  Blakie,  53  111.  495.     And  see  Cavenaugh  v.  Ainchbacker,  36  Geo.  500. 

2  2  Bl.  Com.  497  ;  1  Redf.  Wills,  22.  s  4  Burge  Col.  &  For.  Laws,  326. 

*  lb.  328. 

*  Voet,  Sande,  and  Rodenb.,  cited  4  Burge  Col.  &  For.  Laws,  326.  We  may 
understand,  therefore,  why  the  Louisiana  Code  permits  the  wife  to  make  her 
testament  without  the  authority  of  her  husband.  La.  Code,  art.  132.  And  in 
other  South-western  States,  under  the  community  system,  the  wife's  right  of 
testamentary  disposition  is  likewise  to  be  found.  In  Mississippi,  this  riglit  has 
been  long  favored,  nor  is  it  abridged  by  construction  of  the  married  women's 
acts.  Lee  v.  Bennett,  31  Miss.  119.  In  California,  the  statute  gives  the  wife 
power  to  dispose  of  all  her  separate  estate  without  the  concurrence  of  her  hus- 
band, but  her  will  must  be  attested,  witnessed,  and  proven  after  the  ordinary 
manner  of  wills.  It  cannot  be  said  in  anj'  of  these  States  that  the  doctrine  of 
the  wife's  testamentary  capacity  was  borrowed  entirely  from  the  English  com- 
mon law,  or  underwent  corresponding  modifications  ;  though  the  final  results  at 
this  day  are  found  to  be  quite  similar. 

[277] 


*  257  HUSBAND  AND   WIFE. 

*  258    band,  *  is  entitled  to  all  the  effect  of  a  will  made  by 

a  person  sui  juris.  But  whether  the  paper  be  re- 
garded as  a  will,  or  as  an  instrument  in  the  nature  of  a  last 
^-ill  and  testament,  it  must  be  regularly  admitted  to  probate 
before  it  can  have  any  force  whatever.^  And  marriage  oper- 
ates as  a  revocation  of  her  will  made  while  single  ;  nor  can  it 
revive  on  her  husband's  death.^-  There  are  other  States  where 
the  wife's  will  of  property  settled  to  her  separate  use  has 
been  allowed  to  ojoerate  by  way  of  appointment.^  Or  again, 
her  will  made  by  permission  of  the  husband,  where  the  same 
is  duly  admitted  to  probate.*  In  Kentucky,  while  a  married 
woman's  will  is  to  be  restricted  in  operation  to  such  estate  as 
she  is  authorized  by  law  to  dispose  of  by  will,  and  the  con- 
clusiveness of  a  probate  judgment  must  be  regulated  accord- 
ingly, there  is  a  liberal  disposition  manifested  to  treat  land 
belonging  to  a  married  woman  who  lives  apart  from  her  hus- 
band, as  so  far  her  separate  estate  that  she  may  dispose  of  it 
by  her  will.'^ 

Independently  of  late  statutes  conferring  a  special  power, 
the  older  States  agree  that  a  married  woman  cannot  devise 
lands  not  held  in  her  sole  right.^  But  the  Ohio  courts,  many 
years  ago,  decided  that  under  its  own  statutes,  giving  "  every 
male  person  aged  twenty-one  years  or  upward,  and  every 
female  aged  eighteen  years  or  upward,"  the  power  to  devise 
property,  a  married  woman  could  make  a  valid  will  to  pass 
her  real  estate.''  In  New  York,  a  married  woman  might  for- 
merly make  a  valid  will  under  the  written  authority  of  her 
husband ;  but  the  right  was  afterwards  taken  away ;  for  by 
the  Revised  Statutes,  married  women  were  exj)ressly  excepted 
from  the  provision  conferring  general  testamentary  power.^ 

1  Lee  V.  Bennett,  31  iliss.  119.  -  Garrett  v.  Dabney,  27  Miss.  335. 

=<  Buchanan  v.  Turner,  26  Md.  1  ;  Porcher  v.  Daniel,  13  Ricli.  349. 

*  Emery  v.  Neiglibour,  2  Halst.  142.     And  see  Chapman  v.  Gray,  8  Geo.  341. 

s  Mitcliell  V.  Holder,  8  Bush,  362 ;  Hiram  v.  Griffin,  8  Bush,  262. 

6  Osgood  I'.  Breed,  12  Mass.  52-5 ;  Taber  u.  Packwood,  2  Day,  63 ;  West  f. 
West,  10  S.  &  R.  446;  Marston  v.  Norton,  5  N.  H.  205;  Newlin  v.  Freeman,  1 
Ireil.  Law,  514. 

"^  Allen  V.  Little,  5  Ohio,  65.  This  was  a  case  of  a  woman  living  apart  from 
her  husband. 

8  Moehring  v.  Thayer,  1  Barb.  Ch.  264  ;  Wadhaus  v.  Am.  Home  Missionary 
Society,  12  N.  Y.  415.     See  White  v.  Wager,  25  N.  Y.  328. 

[278] 


WILLS   OF  MARRIED   WOMEN.  *  258 

Under  the  present  English  statute,  the  will  of  a  married 
woman  is  not  rendered  void,  if  executed  during  coverture,  by 
sole  reason  of  her  surviving  her  husband.  There  must 
be  a  *  confirmation  or  republication  of  the  will,  how-  *  259 
ever,  after  coverture  ceases.  And  it  must  be  in  the 
particular  mode  pointed  out  by  the  statute,  and  not  by  parol. ^ 
Hence  a  mere  signature  by  herself,  and  other  parties  as  wit- 
nesses, the  testatrix  saying  nothing  about  the  reason  of  her 
signing,  and  making  no  request  for  the  others  to  sign  as 
witnesses,  is  held  not  to  amount  to  a  republication  of  the 
will.2 

There  can  be  little  doubt  of  the  reluctance  with  which 
courts  of  equity  sustain  devises  from  the  wife  to  her  husband. 
And  there  are  cases  to  the  effect  that  the  husband  cannot 
become  the  gainer,  or  have  his  marital  rights  extended  by  his 
wife's  testamentary  disposition  of  he;>^ands.  But  they  gene- 
rally turn  rather  upon  statutory  construction  than  principle.'^ 
In  New  York,  the  married  women's  act  of  1849  gave  the  wife 
power  "  to  convey  a\id  devise  real  and  personal  propert}^" 
"  as  if  she  were  unmarried,"  and  it  was  held  that,  notwith- 
standing these  woi'ds,  a  deed  executed  by  a  wife,  in  contem- 
plation of  death,  to  her  husband,  in  good  faith  and  voluntarily, 
was  wholly  ineffectual.* 

Wills  of  married  women  unduly  obtained,  through  the 
marital  influence  and  authority  of  their  husbands,  are  of 
course  invalid,  though  the  case  should  fall  within  one  of  the 
exceptions  to  her  general  incapacity.^  So  if  a  wife  hav- 
ing power  to  dispose  of  *  property  by  her  will,  makes  *  260 
her  will,  and  afterwards  destroys  it,  by  the  compulsion 
of  her  husband,  it  may  be  established  afterwards,  on  due 
proof  of  his  misconduct,  and  of  its  contents  and  execution.*^ 

1  1  Redf.  Wills,  377;  Dickinson  v.  Swatman,  6  Jur.  x.  s.  831;  Goods  of 
Grahain,  L.  R.  2  P.  &  D.  385. 

■■J  Dunn  V.  Dunn,  L.  R.  1  P.  &  D.  277. 

3  White  V.  Wager,  25  N.  Y.  328  ;  Morse  v.  Thompson,  4  Cush.  562 ;  Wake- 
field V.  Phelps,  37  N.  H.  205.     See  Hood  v.  Archer,  1  McCord,  225. 

*  WI)ite  V.  Wager,  25  N.  Y.  328.  But  see  Caldwell  v.  Renfrew,  33  Vt.  213  ; 
Noble  V.  Enos,  19  Ind.  72. 

5  Marsh  v.  Tyrrell,  2  Hagg.  84  ;  1  Wms.  Ex'rs,  47.        «  1  Whis.  Ex'rs,  47. 

[279] 


*  260  HUSBAND  AND  WIFE. 

But  in  the  analogous  instance  of  the  wife's  appointment  to 
her  husband,  it  has  been  held  that  the  circumstances  that  the 
deed  had  been  prepared  by  her  husband's  solicitor,  that  it  had 
not  been  read  over  at  the  time  of  the  execution,  and  the 
evidence  of  one  of  the  attesting  witnesses  that  she  was  agi- 
tated and  distressed  at  the  time  of  the  execution,  and  signed 
it  in  a  reluctant  manner,  will  not  be  sufficient  to  invalidate 
the  deed.i 

A  married  woman,  being  desirous  of  making  a  disposition 
of  her  real  estate,  to  take  effect  after  her  decease,  united  with 
her  husband  in  the  execution  of  a  deed  of  the  same  to  a  trus- 
tee, authorizing  him  to  make  a  sale  thereof,  and  out  of  the 
proceeds  to  pay  certain  sums  to  particular  individuals,  and 
the  remainder  to  her  legal  representatives.  The  husband 
received  the  deed  after  its  execution,  upon  his  express  promise 
to  deliver  it  to  the  grantee,  at  his  wife's  decease,  if  that  should 
occur  before  his  own.  Ui^on  her  death  before  the  husband,  a 
court  of  equity  decreed  the  delivery  of  the  deed  to  the  gran- 
tee, on  the  ground  that  the  title  to  such  estate  had  vested  in 
him.2 

It  is  held  in  Pennsylvania,  that  where  husband  and  wife 
had  wills  prepared  giving  their  property  to  each  other,  but 
each  by  mistake  signed  the  other's  will,  and  the  husband 
afterwards  died,  the  legislature  could  pass  no  subsequent  law 
to  reform  his  will ;  inasmuch  as  the  right  of  his  heirs  became 
vested  on  his  death  as  an  intestate.^ 

The  same  principles  which  regulate  the  wife's  testamentary 
disposition  of  her  personal  chattels  regulate  her  donatio  causa 
mortis  likewise.  Therefore,  it  is  held  that  the  wife's  gift  of 
any  of  her  property  during  her  last  illness,  and  in  expectation 
of  death,  is,  like  her  will,  valid  only  by  the  assent  of  her  hus- 
band.^    Where  the  wife  held  notes  to  her  separate  use, 

*  261    it  was  *  decided  in  Vermont   that   she  might  make 

them  the  subject  of  a  donatio  causa  mortis  to  her  hus- 

1  Nedby  v.  Nedby,  11  E.  L.  &  Eq.  106.     See  Noble  v.  Enos,  19  Ind.  72. 

2  Woodward  v.  Camp,  22  Conn.  457.  »  Alter's  Appeal,  67  Penn.  St.  341. 
*  Jones  V.  Brown,  34  N.  H.  439. 

[280] 


WILLS   OF   MARRIED   WOMEN.  *  261 

band  as  trustee  for  other  persons,  and  thereby  vest  in  him  a 
good  legal  title  as  against  her  administrator.  "  In  this  view 
alone,"  added  the  court,  "  it  seems  to  be  needless  to  discuss 
whether  the  husband  could  be  a  donee  causa  mortis  of  the 
wife  ;  and  yet  on  principle  it  is  quite  difficult  to  assign  a 
cogent  or  plausible  reason  why  he  might  not  be."  ^  But  of 
course  the  husband  may  set  up  his  antenuptial  contract  with 
his  wife  in  reference  to  certain  property,  so  as  to  prevent  her 
donatio  causa  mortis  to  others  from  taking  effect  to  his  prej- 
udice.^ 

Finally,  it  may  be  observed  that,  both  in  England  and 
America,  a  married  woman  may  make  a  testamentary  dispo- 
sition of  real  or  personal  estate  under  a  power,  even  where  her 
general  testamentary  capacity  is  by  law  denied  or  restricted. 
There  are  many  decisions  found  to  this  effect.^  And  in  some 
cases,  particularly  those  involving  property  rights  in  the  wife's 
lands,  the  courts  seem  to  have  been  misled  by  the  similarity 
between  separate  estates  and  estates  with  a  power  of  appoint- 
ment given  to  the  wife  ;  and  therefore  to  have  applied  the 
terms  "  devise,"  "  will,"  and  "  appointment,"  somewhat  indis- 
criminately. 

1  Caldwell  v.  Renfrew,  33  Vt.  213.         2  Lawrence  v.  Bartlett,  2  Allen,  36. 

3  4  Kent  Com.  506;  Heath  v.  Withington,  6  Cush.  497;  West  v.  West,  10  S. 
&  R.  446  ;  1  Redf.  Wills,  28,  and  cases  cited  ;  Dominick  v.  Michael,  4  Sandf. 
374;  Hughes  v.  Wells,  13  E.  L.  &  Eq.  389;  Shattock  v.  Shattock,  L.  R.  2  Eq. 
182;  Rogers  v.  Hinton,  1  Pliill.  (N.  C.)  Eq.  101.  In  cases  of  doubt  a  limited 
probate  of  the  instrument  may  be  granted.  Raylon  v.  Tongue,  L.  R.  1  P.  &  D. 
158 ;  Goods  of  Richards,  L.  R.  1  P.  &  D.  156.  And  see  Trappes  v.  Meredith, 
L.  R.  7  Ch.  248 ;  Goods  of  Graham,  L.  R.  2  P.  &  D.  385.  Where  a  will  is  only 
an  appointment  under  a  settlement,  the  trustees  named  do  not  act,  strictly  speak- 
ing, as  executors.     Goods  of  Eraser,  L.  R.  2  P.  &  D.  183. 


[281] 


*262  HUSBAND    AND    WIFE. 


262  *  CHAPTER    XV. 


ANTENUPTIAL   SETTLEMENTS. 


Settlements  are  a  useful  contrivance  for  preserving  estates 
intact  in  a  family.  As  between  husband  and  wife,  the  word 
"  settlement  "  is  applied  to  their  mutual  contracts  in  reference 
to  the  property  of  one  another,  by  means  of  which  they 
change  and  control  the  general  rules  of  the  marriage  state. 
They  cannot  vary  the  terms  of  the  conjugal  relation  itself ; 
they  cannot  add  to  or  take  from  the  personal  rights  and  duties 
of  husband  and  wife  ;  but  they  may  essentially  alter  the 
interest  which  each  takes  in  the  property  of  the  other,  if  they 
choose  to  enter  into  special  stipulations  for  that  purpose. 
These  special  stipulations  may  be  either  antenuptial  or  post- 
nuptial ;  while,  as  we  shall  soon  perceive,  the  two  classes  are 
more  alike  in  name  than  substance,  and  the  term  "  marriage 
settlements  "  is  frequently  applied  to  antenuptial  settlements 
only. 

A  distinction  meets  us  at  the  outset,  between  promises  to 
marry  and  promises  in  consideration  of  marriage.  The  statute 
of  frauds,  section  four,  requires  that  promises  and  agree- 
ments in  consideration  of  marriage  shall  be  "  in  writing,  and 
signed  by  the  party  to  be  charged  therewith,  or  some  other 
person  thereunto  by  him  lawfully  authorized."  Yet  a  promise 
to  marry  is  binding,  although  verbal. ^  It  would  strike  any 
one  (except  perhaps  a  lawyer)  that  a  promise  by  a  woman  to 
marry  a  man  in  consideration  of  his  promising  to  marry  her  was 

an  agreement  made  in  consideration  of  marriage,  but  it 
*  263    is  not.2     Perhaps  *  it  is  public  policy  which  sustains 

the  latter,  rather  than  the  former  contract,  without  re- 

1  Macq.  Hus.  &  "Wife,  220;  Cook  v.  Baker,  1  Stra.  34;  Harrison  v.  Cage,  1 
Ld.  Raym.  386. 

2  See  Smitli  on  Contracts,  57. 

[  282  ] 


ANTENUPTIAL   SETTLEMENTS.  *  263 

quiring  a  writing.  Perhaps  too  this  carries  weight,  that  a 
promise  to  marry  is  merely  a  promise  to  enter  into  a  certain 
relation,  and  so  clearly  interpreted  by  any  court  without  the 
aid  of  written  evidence,  jorovided  the  promise  be  once  proved  ; 
while  the  statute  of  frauds  is  found  most  convenient  for  clearly 
fixing  mutual  stipulations  which  might  be  varied  in  a  thousand 
waj^s  and  affect  the  property  rights  of  the  contracting  parties 
accordingly.  At  all  events,  a  promise  to  marry,  whether 
verbal  or  written,  affords  a  singular  remedy,  one  quite 
diiferent  from  the  remedies  attending  marriage  settlements ; 
namely,  no  right  of  specific  performance,  but  always  damages 
to  the  injured  party.^ 

In  marriage  settlements,  the  marriage  affords  a  sufiicient 
consideration.  Hence  a  man  cannot  set  aside  an  agreement 
in  contemplation  of  marriage,  on  the  plea  that  his  wife's  for- 
tune fell  short  of  his  expectations<^or,  as  Lord  Hardwicke 
observed,  it  would  be  extremely  mischievous  to  set  aside 
marriage  settlements  upon  such  grounds.^  It  is  the  consider- 
ation of  marriage,  not  the  consideration  of  a  corresponding 
fortune,  which  runs  through  the  whole  settlement  or  agree- 
ment, and  supports  every  part  of  it ;  thus  making  marriage 
not  only  a  high  but  the  highest  consideration,  in  fact,  known 
to  the  law.^ 

In  this  country,  the  validity  of  marriage  settlements  is  gen- 
erally recognized ;  and  it  is  well  understood  that  almost  any 
bona  fide  and  reasonable  agreement,  made  before  marriage,  to 
secure  the  wife  either  in  the  enjoyment  of  her  own  property, 
or  a  portion  of  that  of  her  husband,  whether  during  coverture 
or  after  his  death,  will  be  carried  into  execution  in  chancery.* 

^  For  further  discussion  of  this  topic,  see  Macq.  Hus.  &  Wife,  220  et  seq. ; 
and  see  infra,  p.  266. 

2  Ex  parte  Marsh,  1  Atk.  159. 

3  Eord  V.  Stuart,  15  Beav.  499  ;  Nairn  v.  Prouse,  6  Ves.  752 ;  Peachey  Mar. 
Settl.  56.  As  to  power  of  appointment  under  a  settlement,  see  Webb  v.  Sadler, 
L.  R.  8  Ch.  419. 

*  Stilley  V.  Folger,  14  Ohio,  610;  2  Kent  Com.  163;  2  U.  S.  Eq.  Dig.  Hus. 
&  Wife,  22-30;  English  v.  Foxall,  2  Pet.  595;  Hunter  v.  Bryant,  2  Wheat.  32; 
Tarbell  v.  Tarbell,  10  Allen,  278  ;  Skillman  v.  Skillman,  2  Beasl.  403 ;  Cartledge 
V.  Cutliff,  29  Geo.  758  ;  Albert  v.  Winn,  5  Md.  66  ;  Snyder  v.  Webb,  3  Cal.  83  ; 
Smith  V.  Chappell,  31  Conn.  589. 

[  283  ] 


*  263  HUSBAND   AND  WIFE. 

"  These  marriage   settlements,"    observes  Chancellor 

*  264    Kent,  "  are  benignly  *  intended  to  secure  to  the  wife  a 

certain  support  in  every  event,  and  to  guard  her  against 
being  overwhelmed  by  the  misfortunes,  or  unkindness,  or 
vices  of  her  husband.  They  usually  proceed  from  the  pru- 
dence and  foresight  of  friends,  or  the  warm  and  anxious 
affection  of  parents ;  and  if  fairly  made,  they  ought  to  be 
supported  according  to  the  true  intent  and  meaning  of  the 
instrument  by  which  they  are  created."  ^  And  marriage  is  of 
itself  pronounced  in  the  supreme  court  of  this  land  to  be  not 
only  a  valuable  consideration  to  support  a  marriage  settle- 
ment, but  "  a  consideration  of  the  highest  value."  ^ 

But  this  rule  must  be  taken  with  some  caution.  The  mar- 
riage consideration  supports  every  provision  with  regard  to 
the  husband,  the  wife,  and  the  issue.  It  is  held,  also,  to 
extend  to  step-children  by  a  former  marriage.^  It  does  not, 
however,  in  all  cases,  to  collaterals  ;  *  though  Sir  Matthew 
Hale  and  others  held  formerly  that  it  would,  maintaining  that 
the  influence  of  the  marriage  consideration  extended  to  pur- 
chasers generally.^  Nor  are  covenants  in  favor  of  strangers 
supported  by  the  marriage  consideration  unless  specially  pro- 
vided for.^  The  consideration  of  marriage  will  support  a 
settlement  against  creditors ;  this  too  it  would  appear,  though 
the  parties  both  knew  of  the  husband's  indebtedness,  so  long 
as  the  provisions  of  the  settlement  are  not  grossly  out  of  pro- 
portion to  his  station  and  circumstances."  But  if  it  appear 
that  the  celebration  of  marriage  is  part  of  a  scheme  to  defi'aud 

1  2  Kent  Com.  165. 

2  Per  Story,  J.,  Magniac  v.  Thompson,  7  Pet.  348.  And  see  Armfield  v.  Arm- 
field,  1  Freem.  Ch.  311. 

3  Michael  v.  Morey,  26  Md.  239.  Cf.  Ardis  v.  Printup,  39  Geo.  648,  with  Wol- 
laston  V.  Tribe,  infra,  as  to  children  of  a  future  marriage. 

*  Peachey  Mar.  Settl.  58,  60,  and  cases  cited ;  Davenport  v.  Bishop,  1  Phil. 
701 ;  Barliam  v.  Earl  of  Clarendon,  10  Hare,  133 ;  Ford  v.  Stuart,  15  Beav.  505 ; 
Cotterell  v.  Homer,  13  Sim.  506 ;  WoUaston  v.  Tribe,  L.  R.  9  Eq.  44. 

5  Jenkins  v.  Kemis,  1  Ch.  Cas.  103  ;    1  Lev.  152. 

6  Sutton  I'.  Chetwynd,  3  Mer.  249,  per  Sir  Wm.  Grant ;  Sugden  Law  Prop. 
153;  Peachey  Mar.  Settl.  61. 

^  Campion  v.  Cotton,  17  Ves.  272 ;  Ex  parte  McBurnie,  1  De  G.,  M.  &  G.  446  ; 
Ramsay  v.  Richardson,  Riley  Ch.  271;  Armfield  v.  Armfield,  1  Freem.  Ch.  311; 
Jones'  Appeal,  62  Penn.  St.  324 ;  Brunnel  v.  Witherow,  29  Ind.  123 ;  Credle  v. 
Carrawan,  44  N.  C.  422. 

[284] 


ANTENUPTIAL  SETTLEMENTS.  *  264 

and  delay  creditors,  such  settlement  will  not  be  allowed 
to  protect  the  property  against  just  claims  of  the  latter.^ 
Where  fraud  has  been  committed  by  husband  and  wife  in 
reference  to  property  embraced  in  the  terms  of  a  settlement, 
the  riohts  of  a  creditor  with  insufficient  notice  are  some- 
times  upheld  as  against  themselves ;  and  a  wife's  settlement 
of  her  own  property  has  been  so  far  set  aside  as  to  secure 
paj'ment  of  her  antenuptial  debt  to  the  creditor.^ 

In  Neves  v.  Scott^  wdiich  came  up  on  appeal  before 
*  the  Supreme  Court  of  the  United  States,  the  rights  *  265 
of  collaterals  under  a  marriage  agreement  received  con- 
sideration. And  it  is  declared  as  the  result  of  the  authorities, 
English  and  American,  that  if,  from  the  circumstances  under 
which  the  marriage  articles  were  entered  into  by  the  parties, 
or  as  collected  from  the  face  of  the  instrument  itself,  it  appears 
to  have  been  intended  that  the  collateral  relatives,  in  a  given 
event,  should  take  the  estate,  and  a  proper  limitation  to  that 
effect  is  contained  in  them,  a  court  of^equity  will  enforce  the 
trust  for  their  benefit.  They  will  not  be  regarded  as  volun- 
teers outside  of  the  deed,  but  as  coming  fairly  within  the 
influence  of  the  consideration  on  which  it  is  founded ;  the 
consideration  extending,  in  fact,  through  all  the  limitations 
for  the  benefit  of  the  remotest  persons  provided  for  consistent 
with  law. 3 

If  an  agreement  be  made  in  writing  before  marriage,  for  the 
settlement  of  an  estate,  the  settlement,  although  made  after 
marriage,  will  be  deemed  valuable.*     This  is  a  well-settled 

1  Columbine  v.  Penhall,  1  Sm.  &  Gif.  228;  Goldsmith  v.  Russell,  5  De  G.,  M. 
&  G.  555;  Peachey  Mar.  Settl.  63  ;  Simpson  v.  Graves,  Kiley  Ch.  232. 

2  Sliarpe  v.  Foy,  L.  R.  4  Cli.  35 ;  Smith  v.  Cliirrell,  L.  R.  4  Eq.  3J0 ;  Chubb 
V.  Stretch,  L.  R.  9  Eq.  555 ;  Obermayer  v.  Greenleaf,  42  Mis.  304 ;  Brame  v. 
McGee,  46  Ala.  170. 

3  Neves  v.  Scott,  9  How.  196  ;  ib.  18  How.  268.  And  see  Eaton  v.  Tillinghast, 
4  R.  I.  276  ;  Buchanan  v.  Deshon,  1  Har.  &  G.  280  ;  De  Barranti  v.  Gott,  6  Barb. 
492;  Wallace  v.  McCullough,  1  Rich.  Eq.  426;  Parsons  v.  Ely,  45  111.  232; 
Mitchell  V.  Moore,  16  Gratt.  275. 

*  Reade  v.  Livingston,  3  Johns.  Ch.  481 ;  Finch  v.  Finch,  10  Ohio  St.  501  ; 
Izard  V.  Izard,  1  Bailey  Cli.  228 ;  Davidson  v.  Graves,  Riley  Ch.  219 ;  Satter- 
thwaite  v.  Emley,  3  Green  Ch.  489;  Rogers  v.  Brightman,  10  Wis.  55;  Peachey 
Mar.  Settl.  63;  Sugd.  Vend.  &  Purch.  13th  cd.  5'JO ;  Macq.  Hus.  &  Wife,  257. 

[285] 


*  265  HUSBAND   AND   WIFE. 

rule,  and  should  be  constantly  borne  in  mind.  There  are 
dicta  to  the  effect  that  a  settlement  after  marriage,  reciting  a 
parol  agreement  before  marriage,  is  not  fraudulent  against 
creditors,  provided  the  agreement  had  actual  existence ;  but 
this  point  has  never  been  distinctlj'-  decided  in  England  ;  and 
some  late  authorities  appear  to  doubt  its  correctness.^  The 
payment  of  money  would,  however,  make  a  good  considera- 
tion for  such  a  settlement  as  against  subsequent  creditors.^ 
The  language  of  the  statute  of  frauds  has  a  material 

*  266    bearing   upon   all   such  *  cases.      Yet  very  informal 

agreements  are  often  sustained,  rather  on  liberal  than 
technical  construction,  the  court  taking  into  consideration  the 
fact,  that  marriage  had  taken  place,  or  other  acts  been  per- 
formed, on  the  strength  of  the  promise.^ 

With  resj)ect  to  the  form  of  marriage  settlements  it  may  be 
generally  observed  that  equity  pays  no  regard  to  the  exter- 
nals, but  considers  only  the  substantial  intention  of  the 
parties  ;  and  hence  articles  or  an  agreement  will  be  binding 
between  husband  and  wife  without  the  intervention  of  trus- 
tees ;  for  here  the  husband  himself  may  be  bound  to  act  as 
trustee.*  A  strong  instance  of  the  liberality  of  the  equity 
courts  in  this  respect  was  afforded  in  an  early  decision  by 

1  See  Peacliey  Mar.  Settl.  63  ;  Lassence  v.  Tierney,  1  Mac.  &  Gor.  571 ;  War- 
den V.  Jones,  5  W.  R.  447.  And  see  Babcock  v.  Smith,  22  Pick.  61 ;  Simpson 
V.  Graves,  Riley  Ch.  232. 

-'  Stillman  v.  Ashdovvn,  2  Atk.  478 ;  Brown  v.  Jones,  1  Atk.  189.  And  see 
Butterfield  v.  Heatli,  15  Beav.  414. 

*  The  disposition  in  this  country  is  ratlier  favorable  to  settlements  after  mar- 
riage in  pursuance  of  informal  prior  agreements.  See  Livingston  v.  Livingston, 
2  Johns.  Ch.  481  ;  Resor  v.  Resor,  9  lud.  347  ;  Brooks  v.  Dent,  1  Md.  Ch.  523; 
West  V.  Howard,  20  Conn.  581.  Other  considerations,  such  as  forbe.arance  to 
sue,  may  intervene.  Riley  v.  Riley,  25  Conn.  154  (1856).  And  see  Miller  v. 
Goodwin,  8  Gray,  542.  See,  as  to  the  like  English  practice,  Peachey  Mar.  Settl. 
74,  87;  Macq.  Hus.  &  Wife,  234;  Hammersley  v.  De  Biel,  12  CI.  &  Fin.  45; 
Lassence  v.  Tierney,  1  Mac.  &  Gor.  571.  The  numerous  dicta  in  these  cases 
serve  rather  to  obscure  than  illustrate  the  principle.  A  mere  oral  agreement 
between  the  intended  husband  and  wife,  followed  by  marriage  and  a  continued 
recognition  by  acts,  is  lield  sufficient  as  between  the  parties  and  those  claiming 
under  tiiem,  in  some  of  the  latest  American  cases.  Southerland  v.  Soutiierland, 
5  Bush,  591 ;  Child  v.  Pearl,  43  Vt.  224.  But  see  Flenner  v.  Flenner,  29  Ind. 
564. 

*  Peachey  Mar.  Settl.  65;  Macq.  Hus.  &  Wife,  242;  Logan  v.  Goodall,  42 
Geo.  95.     But  see  Dillaye  v.  Greenough,  45  N.  Y.  438. 

[286] 


ANTENUPTIAL   SETTLEMENTS-  *  266 

Lord  Keeper  Wright.  The  intended  husband  gave  the  in- 
tended wife  a  bond  conditioned  to  leave  her  XIOOO  if  she 
should  survive  him.  They  married,  and  of  course  the  bond 
became  void  at  law.  But  it  was  held  that  in  equity  this 
should  subsist  as  an  antenuptial  agreement.^  Even  in  law  a 
bond,  with  conditions  properly  expressed,  may  be  enforced 
against  the  husband  to  the  extent  of  the  penalty  therein 
named  ;  yet  equity,  regarding  the  contract  as  one  for  specific 
performance,  will  not  confine  the  remedy  of  the  injured  party 
to  the  penal  sum  named  in  the  bond ;  but,  enforcing  the  real 
obligations  of  the  bond,  will  give,  if  need  be,  thirty  times  that 
sum  to  her  who  married  on  the  strength  of  it.  Such  is 
the  advantage  of  equity  over  the  law.^  Letters,  also, 
*  if  they  sufficiently  furnish  the  terms  of  the  agreement,  *  267 
have  been  held  good  marriage  contracts.^  And  it  is 
now  clearly  settled  that  a  letter  which  contains  the  terms  of 
an  agreement,  or  refers  to  another  pa^r  which  specifies  the 
terms,  is  sufficient  to  take  the  contract  out  of  the  statute  of 
frauds."^ 

In  this  connection  the  use  of  the  term  "  marriage  articles  " 
is  properly  to  be  noticed.  "  When  promises  and  agreements 
in  consideration  of  marriage,"  says  Mr.  Macqueen,  "  are 
meant  to  become  the  groundwork  of  settlements,  they  are 
called  marriage  articles.  They  are  often  drawn  up  hastily, 
and  signed  on  the  eve  of  the  nuptial  ceremony  from  want  of 
time  to  prepare  a  final  deed  ;  which,  however,  when  ulti- 
mately executed,  if  it  be  in  strict  conformit}^  with  the  articles, 
will  supersede  them."  ^     The  American  rule  is  favorable  to 


1  Acton  V.  Pierce,  2  Vern.  480 ;  Crostwaiglit  v.  Hutchinson,  2  Bibb,  407 ; 
Siles  V.  Fleming,  1  Dev.  Eq.  186  ;  Kenly  v.  Kenly,  2  How.  (Miss.)  751. 

2  See  Prebble  v.  Boghiirst,  1  Swan.  309,  before  Lord  Eldon,  cited  in  Macq. 
Hus.  &  Wife,  243  et  secj. ;  Cannel  v.  Buckle,  2  V.  Wnis.  242  ;  Rippon  v.  Dawding, 
Anibl.  6G6 ;  Peachey  Mar.  Settl.  G5.  Bonds  have  been  frequently  enforced  in 
this  country  as  constituting  a  marriage  settlement.  Aucker  v.  Levy,  3  Strobh. 
Eq.  l'J7  ;  Hunter  v.  Bryant,  2  Wheat.  32 ;  Freeman  v.  Hill,  1  Dev.  &  Bat.  Eq. 
889;  Baldwin  v.  Carter,  17  Conn.  201. 

8  Logan  V.  Wienholt,  1  CI.  &  Fin.  611. 

*  Hammersley  v.  De  Biel,  12  CI.  &  Fin.  45;  Moorhouse  v.  Colvin,  15  Beav. 
849  ;  Peachey  Mar.  Settl.  67. 
5  Macq.  Hus.  &  Wife,  246. 

[287] 


*267  HUSBAND   AND  WIFE. 

marriage  articles,  although  unskilfully  drawn,  so  long  as  they 
are  bona  fide  articles.^ 

While  promises  made  in  consideration  of  the  marriage  by  a 
third  party,  such  as  the  wife's  father,  may  afterwards  be 
enforced  against  him  by  the  husband,  it  must  appear  that  the 
latter  knew  of  the  promise,  and  that  it  entered  as  an  ingre- 
dient into  the  marriage  ;  and  the  husband  cannot,  upon  find- 
ing after  marriage,  that  his  wife,  while  single,  had  received  a 
letter  from  her  father  promising  a  certain  allowance,  hold  the 
latter  to  siDccific  performance.^  And  courts  of  equity  have 
frequently  refused    to  enforce  marriage  agreements  on   the 

ground  of  their  being  inconsistent,  uncertain,  and  un- 
*  268    intelligible.^     Particularly  *  is  this  found  true  of  loose 

expressions  contained  in  letters  written  by  relatives  of 
the  married  parties  upon  which  the  attempt  is  made  to  render 
them  chargeable. 

Lord  Thurlow,  once  considering  the  question  whether  a 
letter  written  by  the  defendant,  which  referred  to  an  unsigned 
agreement,  would  take  the  agreement  out  of  the  statute  of 
frauds,  remarked,  "  If  he  had  said  he  never  would  sign  it,  he 
could  not  have  been  bound ;  but  if  he  said  he  never  would 
sign  it,  but  would  make  it  as  good  as  if  he  did,  it  would  be 
a  promise  to  perform  it.  If  he  said  he  never  would  sign, 
because  he  would  not  hamper  himself  by  an  agreement,  it 
would  be  too  perverse  to  be  admitted.""*  And  on  this  last 
ground  Lord  Thurlow  suffered  the  defendant  in  the  case  to 
go  clear. 

1  Neves  v.  Scott,  9  How.  196;  Hooks  r.  Lee,  8  Ired.  Eq.  157;  Elvers  v. 
Thayer,  7  Ricli.  Eq.  136.  See  Kinnard  v.  Daniel,  13  B.  Monr.  496  ;  ^Montgomery 
V.  Henderson,  3  Jones  Eq.  113  ;  Smith  v.  Moore,  3  Green  Ch.  485 ;  Potts  v.  Cog- 
dell,  1  Desaus.  456. 

2  Ayliffe  v.  Tracy,  2  P.  Wms.  66  ;  Madox  v.  Nowlan,  Beatty,  632.  In  Cover- 
dale  V.  Eastwood,  L.  R.  15  Eq.  121,  the  estate  of  a  father  was  held  hound  by  his 
written  statements  of  intention  to  settle  the  whole  of  his  property  upon  his 
daughter,  upon  the  strength  of  which  she  married,  although  tlie  father,  being  at 
the  time  a  widower,  remarried  afterwards,  and  left  a  widow. 

s  Franks  v.  Martin,  1  Eden,  309 ;  Kay  v.  Crook,  3  Jur.  N.  8.  107  ;  Peachey 
Mar.  Settl.  68  ;  Quinlan  v.  Quinlan,  Hayes  &  Jones,  Ir.  Rep.  785 ;  Maunsell  v. 
White,  1  Jo.  &  Lat.  539. 

*  Tawney  v.  Crowther,  3  Bro.  C.  C.  318,  cited  in  Jorden  v.  Money,  5  Ho.  of 
Lords,  253. 

[  288  ] 


ANTENUPTI^U.  SETTLEMENTS.  *  268 

The  result  of  a  long  array  of  diffuse,  but  exceedingly  inter- 
esting English  equity  decisions  under  this  head  is  to  establish 
the  following  propositions.  Firsts  that  if  any  one  make  a 
representation  to  another  on  which  he  would  reasonably  act, 
the  party  making  the  representation  is  bound  thereby,  and 
cannot  recede  from  it ;  in  other  words,  that  a  man  who,  by  his 
deliberate  assertion,  induces  another  to  enter  into  obligations, 
cannot  afterwards,  by  his  acts,  negative  the  truth  of  that 
assertion.^  Secondly^  that  moral  obligations  in  matters  of 
this  description  are  treated  in  courts  of  equity  as  coextensive 
with  legal  obligations ;  and  that  while  vague  and  ambiguous 
representations  may  be  made  to  persons  on  marriage,  which 
are  only  morally  binding  upon  the  person  making  them,  though 
creating  reasonable  expectation  and  belief  of  advantage  in  the 
minds  of  the  marrying  parties ;  yet,  where  the  matter  is 
clearly  and  distinctly  expressed,  then  the  legal  obligation  fol- 
lows the  moral  obligation,  and  the  contract  will  be  enforced 
by  the  courts.^ 

A  secret  settlement  made  by  a  woman  upon  third  persons, 
while  engaged,  and  contemplating  marriage,  is  liable  to 
be  set  *  aside  in  equity  as  a  fraud  upon  the  marital  *  269 
rights  of  her  intended  husband.  Prima  facie^  her 
transactions  as  2b  feme  sole  with  reference  to  her  own  property 
are  valid  both  at  law  and  in  equity  ;  it  is  only  because  of  the 
fraud  that  her  husband  can  afterwards  obtain  relief  against 
them;  yet  the  English  courts  have  gone  far  in  discounte- 
nancing all  conveyances  made  by  the  intended  wife  in  dero- 
gation of  the  property  rights  of  her  intended  husband,  where 
made  without  notice  to  him.^  The  secrecy  of  the  proceeding 
is  a  material  element  from  which  fraud  will  be  inferred.^    The 

1  Money  v.  Jorden,  15  Beav.  377  ;  Pulsford  v.  Ricliards,  17  Beav.  94. 

'^  Bold  V.  Hutchinson,  20  Beav.  259 ;  Peachey  Mar.  Settl.  87. 

3  Peachey  Mar.  Settl.  142,  and  cases  cited  ;  Doe  d.  Richards  v.  Lewis,  11  C.  B. 
1035 ;  St.  George  v.  AVake,  1  Myl.  &  K.  618 ;  Countess  of  Strathniore  v.  Bowes, 
1  Ves.  Jr.  28 ;  Macq.  Hus.  &  Wife,  36 ;  England  i-..  Downes,  2  Beav.  522 ;  How- 
ard V.  Hooker,  2  Ch.  Rep.  81 ;  1  Eq.  Cas.  Ab.  59,  pi.  1  ;  Lance  v.  Norman,  2 
Cas.  in  Ch.  Rep.  79;  1  Eq.  Cas.  Ab.  59,  pi.  2 ;  Carleton  v.  Earl  of  Dorset,  2 
Vern.  17 ;  St.  George  v.  Wake,  1  Myl.  &  K.  629  ;  Goddard  v.  Snow,  1  Russ.  485. 

<  England  v.  Downes,  2  Beav.  522 ;  Macq.  Hus.  &  Wife,  36. 

ly  [  289  ] 


*  269  HUSBAND  AND  WIFE. 

husband  must  have  been  kept  in  ignorance  of  the  transaction 
up  to  the  moment  of  marriage.  For,  as  Lord  Chancellor 
Brougham  once  observed,  if  a  man,  knowing  what  has  been 
done,  still  thinks  fit  to  marry  the  lady,  he  cannot  be  per- 
mitted to  allege  afterwards  that  he  has  been  deceived.^ 
Actual  concurrence  on  the  part  of  the  intended  husband  in 
his  wife's  settlement  will  be  even  more  conclusive  against 
him  ;  and,  even  though  he  were  a  minor,  will  preclude  all 
subsequent  allegations  of  fraud  on  the  marital  right.^  It  is 
the  usual  practice  with  English  conveyancers  at  the  present 
day  to  make  the  intended  husband  a  party  to  all  instruments 
executed  by  the  intended  wife  in  contemplation  of  or  during 
a  treaty  of  marriage.^ 

The  same  general  doctrine  has  been  repeatedly  declared  in 
the  courts  of  this  country  ;  and  secret  and  voluntary  con- 
veyances, made  by  a  woman  contemplating  marriage,  may  be 
set  aside  on  the  husband's  subsequent  application  as  a  fraud 
iipon  his  marital  rights.*     Nor  need  she  have  formally 

*  270    settled  her  *  whole  property  in  order  to  come  within 

the  prohibition  ;  any  voluntary  transfer,  under  fraudu- 
lent circumstances,  is  void,  so  far  as  that  particular  property 
is  concerned.^  But  if  the  husband  received  notice  of  the 
transfer  before  marriage  and  chose  to  marry  her  notwith- 
standing, he  is  without  a  remedy.^  Though  not  where  he 
merely  heard  a  vague  rumor  after  he  had  married.''  And  the 
wife's  antenuptial  deed  purporting  to  convey  her  pro23erty  in 
trust  for  her  separate  use  has  been  treated  as  fraudulent.^ 

1  St.  George  f.  "VVake,  1  Myl.  &  K.  610;  Peachey  Mar.  Settl.  145,  and  cases 
cited. 

2  Slovvcombe  v.  Glubb,  2  Bro.  C.  C.  545.  3  Peachey  Mar.  Settl.  155. 

*  2  Kent  Com.  174,  175,  and  notes,  last  ed. ;  Spencer  v.  Spencer,  3  Jones  Eq. 
404 ;  Tucker  v.  Andrews,  13  Me.  124,  128 ;  Williams  v.  Carle,  2  Stockt.  543 ; 
Freeman  v.  Hartman,  45  111.  67. 

6  Fletcher  v.  Ashley,  6  Gratt.  332. 

6  Cheslure  v.  Payne,  16  B.  Monr.  618  ;  Terry  r.  Hopkins,  1  Hill  Ch.  1.  See 
1  Story  Eq.  Juris.  §  4U3.  And  see  Cole  v.  O'Neill,  3  Md.  Ch.  174  ;  O'Neill  v. 
Cole,  4  Md.  107. 

■J  Spencer  v.  Spencer,  3  Jones  Eq.  404.  But  see,  as  to  registration,  i»fra,  p- 
275  ;  and  Peachey  Mar.  Settl.  155. 

8  Belt  V.  Ferguson,  3  Grant,  289.  And  see  Duncan's  Appeal,  43  Penn. 
St.  67. 

[  290] 


ANTENUPTIAL  SETTLEMENTS.  *  270 

Lord  Thurlow  says  tlie  question  in  all  such  cases  is  wlietlier 
the  evidence  is  sufficient  to  raise  fraud.^  And  from  the  deci- 
sions it  would  appear  that  some  alienations  of  the  wife's 
property  without  her  intended  husband's  knowledge  will  be 
allowed  to  stand.^  The  facts  are  always  open  to  inquiry  ; 
and  it  seems  settled  that  the  court  is  warranted  in  considering 
such  circumstances  as  the  meritorious  object  of  the  convey- 
ance and  the  situation  of  the  husband  in  point  of  pecuniary 
means.^ 

From  what  has  been  said,  it  may  readily  be  gathered  that 
a  secret  settlement  by  the  intended  wife,  made  before  she  was 
courted,  is  not  likely  to  be  set  aside,  on  proof  that  the  com- 
plainant commenced  courting  her  afterwards.'^  And  the  hus- 
band must  show,  not  only  that  the  wife  contemplated 
marriage  *  with  some  person  at  the  time  of  the  settle-  *  271 
ment,  but  that  he  was  the  person  intended.*^ 

A  corresponding  rule  as  to  fraud  wfruld,  doubtless,  apply 
to  a  husband  who,  before  marriage,  had  made  a  secret  transfer 
of  his  own  property  to  his  wife's  injury ;  not,  however,  with- 
out regard  to  the  difference  which  subsists  at  law  between 
their  marital  rights  in  each  other's  property.^  Indeed,  it  is 
sometimes  said  that  any  designed  and  material  concealment 
ought  to  avoid  an  antenuptial  contract  at  the  will  of  the  party 
who  has  been  thereby  injured." 

Marriage  articles,  to  make  a  settlement  of  real  property, 
should  be  drawn  up  only  in  extreme  cases  ;  though  in 
the  case  of  personalty,  more  latitude  may  be  allowed ;  and 

1  Stratlimore  v.  Bowes,  1  Ves.  Jr.  28. 

2  Taylor  v.  Pugli,  1  Hare,  613 ;  2  Roper  Hu8.  &  "Wife,  1G2 ;  Peachey  Mar. 
Settl.  147. 

3  St.  George  v.  Wake,  1  Myl.  &  K.  610  ;  King  v.  Cotton,  2  P.  Wms.  674.  And 
see  Tliomas  v.  Williams,  Mosely,  177  ;  Blanchet  v.  Foster,  2  Ves.  Sen.  264  ; 
Anonymous,  34  Ala.  430;  Taylor  v.  Pugh,  1  Hare,  614;  Lewellin  v.  Cobbold, 
1  Sm.  &  Gif.  376 ;  Peachey  Mar.  Settl.  151. 

4  King  V.  Cotton,  2  P.  Wms.  674. 

5  England  v.  Downes,  2  Beav.  622 ;  Peachey  Mar.  Settl.  15 ;  Macq.  Hus.  & 
Wife,  37 ;  Strathmore  v.  Bowes,  1  Ves.  Jr.  22.  And  see  Waters  v.  Tazewell, 
9  Md.  2yl. 

•>  See  Leach  v.  Duvall,  8  Bush,  201 ;  Gainor  v.  Gainor,  20  Iowa,  337. 
■J  Kline  v.  Kline,  57  Penn.  St.  120 ;  KUne's  Estate,  64  Penn.  St.  122. 

[291] 


*  271  HUSBAND   AND   WIFE. 

*  272    when  drawn  *  up  they  should  leave  as  little  to  con- 

struction as  possible.  Yet  marriage  articles  are  fre- 
quently prepared  in  great  haste,  and  many  questions  must 
necessarily  arise,  as  to  the  intention  of  the  parties ;  these  the 
courts  of  equity  endeavor  to  meet  by  adopting  the  intention 
of  the  parties  as  their  true  guide,  and  taking  it  for  granted 
that  the  articles  are  merely  minutes  which  the  seti'lement 
may  explain  more  at  large,  but  which  are  not  to  be  literally 
followed.! 

The  general  rule  as  to  reforming  settlements  framed  upon 
antenuptial  articles  is  thus  laid  down  by  Lord  Chancellor 
Talbot :  2  "  Where  articles  are  entered  into  before  marriage, 
and  settlement  made  after  marriage,  differing  fi'om  the  articles, 
this  court  will  set  up  the  articles  against  the  settlement." 
That  is  to  say,  the  court  will  order  the  settlement  to  be  re- 
formed. Where  both  the  articles  and  the  settlement  are  prior 
to  the  marriage,  at  a  time  when  all  the  parties  are  at  liberty, 
the  settlement  differing  from  the  articles  will  be  taken  as  a 
new  agreement  between  them,  and  the  articles  will  be  con- 
trolled accordingly.^  For  the  discrepany  will  be  presumed  to 
have  arisen  from  some  change  of  mutual  intention,  while 
matters  remained  open.  But  this  rule  is  not  invariable, 
according  to  the  later  authorities  ;  for  any  clear  and  satisfac- 
tory evidence  may  be  introduced  to  show  that  the  discrepancy 
had  arisen  from  a  mistake.*  Where  the  settlement  expressly 
declares  that  it  is  made  in  terms  of  the  articles,  and  yet  differs 
from  them,  the  settlement  will  be  reformed,  so  as  to  corre- 
spond with  the  articles.  This  is  no  contradiction  of  the 
general  rule  ;  for  where  the  settlement  is  expressly  mentioned 
to  be  made  in  pursuance  of  the  marriage  articles,  the  inten- 
tion of  the  parties  is  by  writing  shown  to  be  the  same 
*  273  as  when  the  articles  were  *  drawn,  and  must  be  con- 
strued accordingly.     And  curiously  enough  in  an  Eng- 

1  Peachey  Mar.  Settl.  89-97  ;  Macq.  Hus.  &  Wife,  257 ;  Trevor  v.  Trevor, 
1  P.  Wms.  631 ;  Blandford  v.  Marlborough,  2  Atk.  545  ;  Rochfort  v.  Fitzmaurice, 
Dru.  &  War.  18.     But  see  Breadalbane  v.  Chandos,  2  Myl.  &  Cr.  711. 

2  Legg  V.  Goldwire,  Forrester,  20 ;  Macq.  Has.  «S;  Wife,  259. 
'  Legg  V.  Goldwire,  Forrester,  20;  Peachey  Mar.  Settl.  134. 

*  See  Peachey  Mar.  Settl.  135;  Bold  v.  Hutchinson,  2  Jur.  n.  8.  97;  5  De 
G.,  M.  &  G.  567. 

[292] 


ANTENUPTIAL   SETTLEMENTS.  *  273 

lish  case  under  this  head,  though  the  settlement  followed  the 
precise  words  of  the  marriage  articles,  the  court  reformed  it, 
in  order  to  carry  out  the  actual  intention  of  the  parties.^ 

Mistakes  in  marriage  settlements,  either  through  error  or 
fraud,  wiU  be  corrected  in  equity ;  the  principle  being  that 
the  parties  are  to  be  placed  in  the  same  situation  in  which 
they  would  have  stood,  if  the  error  to  be  corrected  had  not 
been  committed.^ 

Many  deeds  of  settlement  provide  what  are  called  "  por- 
tions." The  word  "  portion  "  may  be  used  to  denote  what  the 
wife  brings  her  husband  in  marriage,  and  in  this  sense  it  cor- 
responds with  the  word  dos  at  the  civil  law,  or  what  we 
sometimes  call  her  dowry.  But  in  its  more  special  accepta- 
tion, the  word  "  portion  "  signifies  that  part  of  a  person's  estate 
which  is  given  or  left  to  a  child.  Marriage  settlements  usually 
contain  some  provision  to  secure  portiens  for  the  children  of 
the  marriage.^  Double  portions  may  sometimes  be  created 
for  children  ;  as  if  a  father  should  make  a  provision  for  a 
child  by  marriage  settlement,  and  afterwards  provide  for  the 
same  child  by  will ;  but  the  presumption  is  always  against 
such  an  intent,  and  in  favor  of  regarding  the  latter  as  a  sub- 
stitute for  the  former.* 

So,  too,  marriage  settlements  frequently  contain  a  covenant 
on  the  husband's  part  to  settle  all  the  after-acquired  property 
of  the  wife.  In  most  of  the  cases  decided  under  this  head, 
the  courts  have  evidently  sought  to  adapt  the  covenant 
to  the  *  presumed  intention  of  the  parties  ;  the  question  *  274 
still  being  one  of  intention  to  be  gathered  from  the 
contents  of  the  instrument  by  which  the  parties  have  bound 

1  West  V.  Errissey,  2  P.  Wms.  350. 

2  Kooke  V.  Lord  Kensington,  2  Kay  &  Johns.  770  ,■■  Peachey  Mar.  Settl.  565, 
576 ;  Alexander  v.  Crosbie,  Lloyd  &  Goold,  temp.  Sugd.  149  ;  Sanderson  v. 
Robinson,  6  Jones  Eq.  155;  Love  v.  Graham,  25  Ala.  187  ;  Reade  v.  Armstrong, 

7  Irish  Eq.  n.  s.  381 ;  Walker  v,  Armstrong,  2  Jur.  n.  s.  962 ;  Brown  v.  Bonner, 

8  Leigh,  1 ;  Ball  v.  Storie,  1  Sim.  &  Stu.  210,  219. 

3  Wood  V.  Briant,  1  Atk.  522.  For  a  full  discussion  of  this  topic,  see  Peachey 
Mar.  Settl.  409  et  seq.,  and  cases  cited. 

*  Ex  parte  Pye,  18  Ves.  147  ;  Peachey  Mar.  Settl.  492  et  seq.,  and  cases  cited  ; 
Earl  of  Durham  v.  Wharton,  3  CI.  &  Fin.  155.  But  the  Scotch  rule  of  construc- 
tion is  otherwise.     Kippen  v.  Darley,  3  Macq.  203. 

[293] 


*  274  HUSBAND   AND   WIFE. 

themselves.^  And  the  rule  of  construction  is  the  same, 
whether  damages  for  breach  of  covenant  be  sought  at  law,  or 
specific  performance  in  equity .^  Such  covenants  may  be  on 
the  wife's  part ;  or  they  may  be  conditional.^ 

Equity  sometimes  refuses  to  enforce  an  antenuptial  settle- 
ment, as  between  husband  and  wife,  not  only  because  of  its 
fraudulent  character  as  regards  the  one  or  the  other  party, 
but  on  the  ground  that  it  is  improvident.  Yet  relief  of  this 
sort  is  rarely  afforded,  and  especially  so  wdiere  the  husband, 
not  the  wife,  seeks  it.'^  And  while  the  wife  may  be  relieved 
from  an  antenuptial  contract  which  bears  very  harshly  upon 
her  property  rights,  there  is  no  doubt  that  where  she  is  of 
competent  age  she  may  bargain  away  her  dower  by  such  an 
agreement ;  and  that,  in  general,  husband  and  wife  may  thus 
mutually  agree  to  claim  no  interest  in  the  property  of  the  one 
who  shall  die  first.^ 

There  is  this  difference  pointed  out  between  promises  and 
agreements  in  consideration  of  marriage,  and  all  other  agree- 
ments ;  namely,  that  the  contract,  though  broken  by  one  of 
the  parties,  remains  binding  upon  the  other.  The  reason  for 
this  is,  that  such  promises  and  agreements  affect  not  only 
the  rights  of  the  married  pair,  but  those  of  their  offspring  ; 
the  children  being,  in  fact,  regarded  as  purchasers.^  But 
where  the  performance  is  sought  by  the  defaulting  party,  the 
contract  cannot  be  enforced  against  the  person  injured  through 
such  default.'  The  difference  thus  mentioned  is,  therefore,  a 
difference  which  grows  out  of  the  peculiar  nature  of  the  con- 

1  Ramsden  v.  Smith,  2  Drew.  302 ;  Steinberger  v.  Potter,  3  C.  E.  Green,  452  ; 
Withers  v.  Weaver,  10  Barr,  391. 

2  Smith  V.  Osborne,  6  Ho.  Lords,  394  ;  Blythe  v.  Granville,  13  Sim.  190; 
Tawney  v.  Ward,  1  Beav.  563 ;  Young  v.  Smith,  L.  R.  1  Eq.  180 ;  Peachey  Mar. 
Settl.  523 ;  Macq.  Hus.  &  Wife,  268.  As  to  the  application  of  this  covenant  to 
separate  property,  see  Mainwaring's  Settlements,  L.  R.  1  Eq.  180;  Milford  y. 
Peile,  17  Beav.  602;  Dering  v.  Kynaston,  L.  R.  6  Eq.  212;  Campbells.  Bain- 
bridge,  L.  R.  6  Eq.  269.  8  Peachey  Mar.  Settl.  548. 

i  Dillaye  v.  Greenough,  45  N.  Y.  438;  Everitt  v.  Everitt,  L.  R.  10  Eq.  405. 

5  Tarbell  v.  Tarbell,  10  Allen,  278 ;  Falk  v.  Turner,  101  Mass.  494 ;  Culber- 
son V.  Culberson,  37  Geo.  296  ;  Naill  v.  Maurer,  25  Md.  532;  Garrard  v.  Garrard, 
7  Bush,  436. 

<i  Bale  V.  Coleman,  1  P.  Wms.  145  ;  Harvey  v.  Ashley,  3  Atk.  610. 

7  Crofton  V.  Ormsby,  2  Sch.  &  Lef.  583.  But  see  Jeston  v.  Key,  L.  R.  6  Ch. 
610,  as  to  covenant  between  husband  and  wife's  father. 

[294] 


ANTENUPTIAL   SETTLEMENTS.  *  274 

tract,  and  the  existence  of  parties,  otlier  than  those  contracting, 
who  may  be  brought  within  the  purview  of  the  consideration. 
As  Lord  Eldon  observes,  the  issue  have  a  right  to  say  to  the 
parents,  "  You  shall,  each  of  you,  do  what  you  can  do,  and  we 
must  not  be  disappointed."  ^  Unquestionably,  however,  even 
in  the  case  of  a  marriage  settlement,  the  covenants  may  be  so 
framed  as  to  be  mutually  dependent ;  and  if  it  be  clear  on 
the  face  of  the  settlement  that  such  was  the  intention,  that 
intention  must  prevail,  even  against  the  offspring  of  the  mar- 
riage .^ 

In  an  early  case.  Lord  Talbot  is  reported  to  have  said  that 
where  marriage  articles  were  pretty  much  in  the  nature  of  a 
jointure,  they  were  not  forfeitable  by  adultery  or  an  elope- 
ment.3  And  upon  the  strength  of  this,  it  has  been  held  that 
marriage  articles  will  be  enforced  on  behalf  of  the  wife, 
although  she  be  living  in  a  state  of.-Adultery.'*  We  find  no 
late  authority  to  support  this  doctrine,  and  it  is  doubtful 
whether  such  a  rule  would  be  enforced  at  this  day.^  The 
wife  may,  like  all  others,  forfeit  her  rights  to  a  trust  for  her 
benefit,  by  long  acquiescence  as  well  as  active  participation 
in  the  unlawful  acts  of  the  trustees  under  the  marriage  settle- 
ment.® 

Property  cannot  be  settled  by  the  intended  husband,  so 
that  in  event  of  his  future  bankruptcy,  or  insolvency,  the  wife 
will  be  entitled  to  a  provision.'''  But  the  wife's  fortune  may 
be  settled  on  her  husband  till  he  fail,  and  then  to  her  separate 
use.^ 

1  Rancliffe  v.  Parkyns,  6  Dow,  209. 

'i  Per  Lord  Cottenliam,  Lloyd  v.  Lloyd,  2  Myl.  &  Cr.  192  ;  Pyke  v.  Pyke,  12 
Ves.  67.  See  farther.  In  re  Wilson's  Estate,  2  Barr,  325 ;  Bliss  v.  Sheldon,  7 
Barb.  152;  Mitchell  v.  Gates,  23  Ala.  438  ;  Shock  v.  Shock,  19  Penn.  St.  252; 
Charles  v.  Charles,  8  Gratt.  486 ;  Hamrico  v.  Laird,  10  Yer<,'.  222. 

"  Sidney  i'.  Sidney,  3  P.  Wms.  275 ;  Seagrave  v.  Seagrave,  13  Ves.  443. 

4  Macq.  Hus.  &  Wife,  263 ;  Buclianan  v.  Bnchanan,  1  Ball  &B.  206. 

s  See  Peaehey  Mar.  Settl.  384  ;  Legard  v.  Hodges,  4  Bro.  C.  C.  421,  cited  by 
Lord  Manners  in  Buchanan  v.  Buchanan,  1  Ball  &  B.  206. 

«  Jones  V.  Higgins,  L.  R.  2  Eq.  538 ;  Stone  v.  Stone,  L.  R.  5  Ch.  74. 

^  Iligginson  v.  Kelly,  1  ftall  &  B.  255 ;  Peaehey  Mar.  Settl.  219  ;  In  re  Casey's 
Trusts,  4  Ir.  Ch.  n.  s.  247. 

8  Lester  v.  Garland,  5  Sim.  222 ;  Sharp  v.  Cosserat,  20  Beav.  470 ;  Lockyer 

[295] 


*  275  HUSBAND  AND  WIFE. 

*  275        *  Marriage  settlements  are  very  common  in  England, 

among  parties  possessed  of  large  means  ;  not  generally 
so  in  this  countr}^  although  many  are  made  in  the  Southern 
States  and  elsewhere.  The  American  policy  is  to  dispense 
with  trusts,  and  place  a  married  woman's  separate  property 
in  her  own  alsolute  keeping.  Yet  marriage  settlements  might 
often  be  well  resorted  to  in  order  to  equalize  the  burdens  and 
privileges  of  matrimony,  while  our  local  legislation  remains 
in  its  present  crude  condition.  Our  registry  system  raises 
questions  of  constructive  notice,  as  to  marriage  settlements, 
often  of  great  local  importance.^ 

We  may  here  add  that  the  old  common-law  rule  was  that 
marriage  extinguished  completely  a  debt  previously  due  the 
wife  from  her  husband,  so  that  it  could  not  revive  on  the 
husband's  death.^  But  the  modern  policy  which  enforces 
marriage  settlements,  and  preserves  the  wife's  separate  es- 
tate, gives  a  more  flexible  scope  to  the  presumed  intention 
of  the  marrying  parties  ;  and  to  that  rule  many  exceptions 
are  to  be  found  at  the  present  day.^ 

V.  Savage,  2  Stra.  947  ;  Ex  parte  Verner,  1  Ball  &  B.  260.     And  see  Higginson  v. 
Kelly,  1  Ball  &  B.  252. 

1  See  particularly  Ingham  v.  White,  4  Allen,  412.  And  see  Gibbes  v.  Cobb, 
7  Rich.  Eq.  54  ;  Logan  v.  Phillips,  18 Mis.  22  ;  Levinz  v.  Will,  1  Dall.  430  ;  O'Neill 
V.  Cole,  4  Md.  107  ;  1  Story  Eq.  Juris.  §  403  ;  2  Kent  Com.  173,  n. ;  Reinhart  v. 
Miller,  22  Geo.  402. 

2  Abbott  V.  Winchester,  105  Mass.  115. 

3  Power  V.  Lester,  23  N.  Y.  527  ;  Fleuner  v.  Flenner,  29  Ind.  564 ;  Fitzgerald 
V.  Fitzgerald,  L.  R.  2  P.  C.  83. 


[  296] 


POSTNUPTLiL   SETTLEMENTS.  *  276 


*  CHAPTER    XVI.  *276 

POSTNUPTIAL    SETTLEMENTS   AND   GIFTS   BETWEEN    HUSBAND  AND 

WIFE. 

The  important  distinction  between  settlements  before  and 
settlements  after  marriage,  is  that,  while  the  former  have  the 
marriage  consideration  to  support  them,  the  latter  are  without 
it.^  The  term  "  postnuptial  settlements,"  then,  must  not  con- 
fuse the  reader's  mind.  We  use  the  language  of  the  text- 
writers,  without  meaning  to  imply  that  it  is  appropriate,  or 
that  antenuptial  and  postnuptial  settlements  constitute  two 
branches  of  one  general  subject.  On  the  contrary,  post- 
nuptial settlements  are  usually  nothing  more  nor  less  than 
gifts  between  husband  and  wife,  which  equity  places,  not- 
withstanding the  disabilities  of  coverture,  upon  the  footing 
of  other  gifts.  Furthermore,  it  should  be  remembered  that 
formal  settlements  made  between  parties  in  the  marriage 
state,  in  pursuance  of  articles  or  memoranda  signed  before 
marriage,  are  not  technically  postnuptial  settlements  (as  the 
name  itself  would  seem  to  indicate)  ;  for  the  settlement 
relates  back  to  the  antenuptial  stipulations,  however  loosely 
these  may  have  been  drawn  up,  and  it  is  protected  by  the 
marriage  consideration,  like  all  other  antenuptial  contracts. 

But  though  for  want  of  consideration  postnuptial  settle- 
ments are  deemed  voluntary,  yet,  like  other  voluntary  trans- 
actions, they  will  be  valid  and  binding,  so  far  as  the  parties 
are  concerned,  and  can  only  be  impeached  as  fraudulent  upon 
others.  Postnuptial  settlements,  therefore,  must  be 
viewed  in  two  different  *  aspects  ;  the  one,  as  between  *  277 
the  married  parties  and  the  creditor  or  purchasers  of 
either ;  the  other,  as  between  husband  and  wife  themselves. 

1  Macq.  Hus.  &  Wife,  273 ;  Lanuoy  v.  Duke  of  Athol,  2  Atk.  448. 

[297  ] 


*  277  HUSBAND  AND  WIFE. 

There  are  two  English  statutes  which  control  this  subject, 
as  concerns  creditors  and  purchasers,  to  a  great  extent.  The 
first  is  that  of  13th  Eliz.  c.  5,  in  favor  of  creditors;  the 
second  that  of  27th  Eliz.  c.  4,  in  favor  of  purchasers : 
the  one  being  directed  against  fraudulent  conveyances  of  all 
property,  with  intent  to  defeat  or  delay  creditors,  the  other 
against  fraudulent  or  voluntary  conveyances  of  lands  designed 
to  defeat  subsequent  purchasers.  These  statutes,  Lord  Mans- 
field said,  cannot  receive  too  liberal  a  construction  or  be  too 
much  extended  in  suppression  of  fraud.^ 

As  to  the  first  of  these  statutes,  it  is  held  that,  if  a  man 
who  is  indebted  conveys  property  for  the  use  of  his  wife  and 
children,  or  in  trust  for  their  benefit,  such  a  conveyance  is 
subject  to  the  statute  prohibition,  inasmuch  as  the  considera- 
tion, although  good  between  the  parties  themselves,  is  not 
bona  fide  as  regards  creditors.^  But  a  voluntary  deed  is  good 
as  against  subsequent  creditors ;  and  there  can  be  nothing 
inequitable  in  a  man's  making  a  voluntary  conveyance  to  a 
wife,  child,  or  even  a  stranger,  if  it  be  not  at  the  time  preju- 
dicial to  the  rights  of  third  persons,  or  in  furtherance  of  some 
design  of  future  fraud  or  injury  to  them.^  The  question  of 
fraudulent  intent  is  the  real  point  at  issue.  And  as  to  fraud 
upon  future  creditors,  it  has  been  said  that  while  an  instru- 
ment might  be  executed  with  the  purpose  of  defrauding 
them,  it  is  not  a  thing  very  likely  to  happen.^  But  cases 
of  this  sort  are  not  impossible.  Thus  a  person  might  make 
a  voluntary  settlement  upon  his  wife  and  children,  raising 

enough  cash  to  pay  off  existing  creditors,  and  leaving 
*  278    those  who  advanced  the  cash  without  the  *  means  of 

securing   their   reimbursement.^       Doubtless    such   a 
transaction  is  to  be  set  aside  as  fraudulent.® 

The  question  of  the  husband's  indebtedness,  as  affecting 

1  Cadogan  v.  Kennett,  Cowp.  434 ;  Peachey  Mar.  Settl.  189. 

'  Goldsmith  v.  Russell,  5  De  G.,  M.  &  G.  547  ;  Peachey  Mar.  Settl.  191. 

3  HoUoway  v.  Millard,  1  Madd.  414 ;  Peachey  Mar.  Settl.  192. 

i  Jenkyn  v.  Vaughan,  25  L.  J.  Eq.  339. 

■5  Richardson  v.  Smallwood,  Jac.  552 ;  Holmes  v.  Penney,  3  Kay  &  Johns. 
102 

6  lb. ;  Macq.  Hus.  &  Wife,  275  ;  Peachey  Mar.  Settl.  193. 

[298] 


POSTNUPTIAL   SETTLEMENTS.  *  278 

his  postnuptial  settlement,  is  not  hoAvever  as  free  from  diffi- 
culty as  it  might  appear  at  first  sight.  Concerning  creditors 
existing  at  the  time  of  the  settlement,  the  settlement  may  be 
void  under  the  statute  ;  but  not  because  the  husband  has 
creditors ;  for  who  goes  through  life  without  being  indebted 
at  all?  It  will  be  void,  however,  when  he  is  so  far  indebted, 
and  his  debts  are  so  considerable  in  amount,  as  to  render  him 
likely  to  be  insolvent.  Probabilities  are  sufficient  to  meet 
this  case  ;  and  if  existing  creditors  wish  to  set  the  convey- 
ance aside,  they  need  only  show  that  at  the  date  of  the  in- 
strument, he  was  indebted  to  such  an  extent  that,  having 
regard  to  his  property,  the  effect  might  be  to  delay,  hinder, 
and  defraud  them.^  The  question  is  not  that  of  actual  insol- 
vency, but  the  intention  to  defraud.-  But  though  the  exist- 
ence of  debts  then  does  not  necessarily  determine  the  validity 
of  the  settlement,  it  lays  the  foundation  for  inquiry,  and  is 
always  material  to  the  issue.  "^^ 

The  property  which  may  be  recovered  by  creditors  does 
not  embrace  property  which  is  exempt  from  execution  ;  for 
the  creditors  have  no  concern  with  any  thing  except  assets, 
actual  or  possible,  for  the  payment  of  their  debts.'^  This  was 
formerly  a  matter  of  dispute  ;  but  it  is  now  apparently  set  at 
rest. 

Voluntary   settlements,    in    England,    are    likewise 
affected  by  *  the  bankrupt  acts,  which  are  intimately    *  279 
connected  with  the  statute  of  Elizabeth.*     Here  ques- 
tions arise  as  to  what  acts  amount   to  a  contemplation  of 
bankruptcy ;  and  what  constitutes  a  fraudulent  ^jreference  ; 
and  these  we  need  not  here  discuss.     But  it  should  be  ob- 

1  Jenkyn  v.  Vaughan,  3  Drew.  424  ;  Turnley  v.  Hooper,  2  Jur.  n.  s.  1081. 

'^  Peaehey  Mar.  Settl.  195,  and  cases  cited;  Skarf  v.  Soulby,  1  M.  &  Gord. 
375 ;  French  v.  French,  6  De  G.,  M.  &  G.  95  ;  Wakefiekl  v.  Gibbon,  26  L.  J. 
Eq.  508.  As  to  the  right  of  subsequent  creditors  to  impeach  a  voluntary  settle- 
ment, see  Walker  v.  Burrowes,  1  Atk.  93  ;  Richardson  v.  Smallwood,  Jac.  552  ; 
Macq.  IIus.  &  Wife,  275  ;  Peaehey  Mar.  Settl.  197.  When  the  deed  is  once  set 
aside,  the  property  is  thrown  open  to  all  creditors.  Ede  v.  Knowles,  2  Y.  &  Col. 
C.  C.  178;  Kidney  v.  Coussmaker,  12  Ves.  136;  Jenkyn  v.  Vaughan,  3  Drew. 
419. 

»  Peaehey  Mar.  Settl.  199  ei  seq. ;  1  Story  Eq.  Juris.  §  410.  See  2  Kent  Com. 
443,  n.,  last  ed. 

*  Peaehey  ilar.  Settl.  210  el  seq. 

[299] 


*  2T9  HUSBAND  AND  WIFE. 

served,  that  the  husband  cannot  bestow  his  property  upon 
his  wife,  conditional  upon  his  future  bankruptcy  or  insol- 
vency ;  yet,  that  third  persons  may,  by  voluntary  convey- 
ance, settle  property  to  the  wife's  separate  use,  free  from  all 
control  of  her  husband  ;  or  in  trust  to  pay  the  income  to  the 
husband  for  life,  "  or  until  he  should  become  a  bankrupt," 
and  after  that,  to  the  wife's  separate  use.^  In  the  former 
case  the  transaction  would  be  simply  an  artifice  of  the  hus- 
band to  evade  the  bankrupt  laws  ;  in  the  latter,  a  third  per- 
son parts  with  his  own  property,  and  makes  his  own  terms  as 
to  its  final  disposition,  as  he  has  a  right  to  do. 

The  statute  of  13  Eliz.  c.  5,  is  generally  recognized 
throughout  the  United  States ;  in  some  cases  having  been 
formally  re-enacted  ;  in  others  claimed  to  be  part  of  the 
common  law  transported  hither  by  the  first  settlers;  and 
hence  gifts  of  goods  and  chattels,  as  well  as  of  lands,  by 
writing  or  otherwise,  are  void  when  made  with  intent  to 
delay,  hinder,  and  defraud  creditors,  even  though  the  gift 
be  to  wife  and  children.^  For  it  is  a  maxim  both  at  the  civil 
and  common  law,  that  the  claims  of  justice  shall  precede 
those  of  affection.^  And  in  general  the  rule  appears  to  be 
coextensive  with  the  fraud,  in  this  country  as  in  England. 

But  the  principle  is  not  stated  with  equal  precision  in  all 
the  States,  it  must  be  admitted;  and  while  some  cases 

*  280    doubtless  *  proceed  upon  the  doctrine  that  the  volun- 

tary gift  fails  because  there  is  an  intent  to  hinder  and 
defraud,  others  again  seem  to  rest  upon  the  mere  existence  of 
actual  creditors  whose  rights  are  thereby  prejudiced.     It  is 

1  Manning  v.  Chambers,  1  De  G.  &  Sm.  282 ;  Sharp  v.  Cosserat,  20  Bear. 
473.  A  similar  principle  prevails  in  this  country.  See  Levering  v.  Heighe,  2 
Md.  Ch.  81 ;  Head  v.  Halford,  5  Rich.  Eq.  128;  Peigne  v.  Snowden,  1  Desaus. 
591.  And  see  supra,  p.  274,  as  to  antenuptial  provisions  of  this  character.  The 
settlement  of  a  trader  of  all  his  property,  both  present  and  future,  in  trust  for  his 
wife's  separate  use,  with  remainder  for  himself  for  life,  and  remainder  for  his 
children,  reserving  the  control  of  the  stock  in  trade  to  himself,  is  likewise  void  as 
to  creditors  in  bankruptcy.     Ware  v.  Gardner,  L.  R.  7  Eq.  317. 

2  2  Kent  Com.  440,  441,  and  cases  cited ;  Bayard  i'.  Hoffman,  4  Johns.  Ch. 
450  ;  Montgomery  v.  Tilley,  1  B.  Monr.  1-57  ;  Reade  v.  Livingston,  3  Johns. 
Ch.  481 ;  Pinney  v.  Fellows,  15  Vt.  525 ;  Simpson  v.  Graves,  Riley  Ch.  232 ; 
Sexton  V.  Wheaton,  8  Wheat.  229;  1  Am.  Lead.  Cas.  1. 

3  Cicero,  de  Off.  I.  14,  cited  in  2  Kent.  Com.  441. 

[  300  J 


POSTNUPTIAL   SETTLEMENTS.  *  280 

not  within  our  province  to  treat  of  this  subject  in  its  general 
bearings,  as  in  gifts  between  man  and  man,  but  so  far  as  the 
American  decisions  concern  gifts  between  husband  and  wife, 
we  shall  presently  give  the  results  somewhat  at  length.^  The 
point  of  the  distinction  however  is  readily  perceived  to  be 
this :  that,  whereas  one  class  of  cases  establishes  that  the 
husband  may  never  settle  property  upon  his  wife  during 
coverture,  if  he  owes  debts  at  the  time  so  as  to  be  insol- 
vent, but  may  otherwise  do  so  absolutely  without  the  fear  of 
future  creditors  before  his  eyes,  the  other  class  of  cases  is  to 
the  purport  that,  no  matter  whether  they  be  existing  or  sub- 
sequent creditors,  his  voluntary  settlement  upon  his  wife  will 
be  voidable  if  with  intent  to  jDrejudice  their  rights,  and  not 
otherwise.  The  latter  we  conceive  to  be  the  true  rule,  sub- 
ject to  the  qualification  that  fraud  as  to  existing  creditors  will 
be  presumed  from  the  fact  of  insolvency  or  even  embarrass- 
ment. The  language  of  the  statutes  iji-eome  States  contrib- 
utes to  the  confusion  which  prevails  as  to  the  correct  legal 
doctrine  on  this  whole  subject.  Furthermore,  our  registry 
system  places  the  law  on  a  somewhat  different  footing  from 
that  prevalent  in  England,  in  all  settlements,  as  we  noticed 
in  the  preceding  chapter. 

Our  present  national  bankruptcy  system  also  affects  the 
doctrine  of  fraudulent  conveyances  in  the  United  States. 
And  under  this  act,  the  gift  of  all  a  debtor's  property  to  his 
wife,  if  not  more  subtle  contrivances  for  evading  creditors 
as  well,  would  be  treated  as  constituting  an  act  of  bauk- 
ruptcy.2  * 

Settlements  as  concerns  the  right  of  creditors  and  pur- 
chasers are  also  affected  by  the  statute  of  27  Eliz.  c.  4.  This 
statute  too  is  to  be  considered  as  part  of  the  common  law 
brought  to  this  country  by  our  ancestors ;  though  not  gen- 
erally adopted  here  to  the  full  extent  of  the  English  equity 
decisions.^  It  provides  that  all  conveyances  of  lands  made 
with  the  intent  to  defraud  and  deceive  purchasers,  shall,  as 

1  See  2  Kent  Com.  440  et  seq.  ;  4  ib.  468  et  seq.,  wliere  the  subject  is  discussed 
at  length,  with  citations  from  American  cases  ;  post,  p.  282,  n. 

'^  In  re  Alexander,  1  Lowell,  470.  ^  4  Kent  Com.  403. 

[801] 


*  280  HUSBAND  AND  WIFE. 

against  tliem,  be  utterly  void.     The  statute  has  no  applica- 
tion whatever  to  personal  estate.^ 

The  English  doctrine  is  that  a  voluntary  convey- 

*  281    ance,   though  *  for  a  meritorious   purpose,   shall   be 

deemed  to  have  been  made  with  fraudulent  views, 
and  must  be  set  aside  in  favor  of  a  subsequent  purchaser 
for  a  valuable  consideration,  even  though  he  had  notice  of 
the  prior  deed.^  In  other  words,  while  the  statute  of  13  Eliz. 
permits  a  voluntary  conveyance  to  stand  as  against  subse- 
quent creditors,  that  of  27  Eliz.  makes  a  voluntary  convey- 
ance of  land  void  as  against  a  subsequent  purchaser  for  value. 
The  principle  on  which  the  English  cases  rest  appears  to  be 
that  by  selling  the  property  over  again  for  a  valuable  consid- 
eration the  vendor  so  entirely  repudiates  the  former  trans- 
action and  shows  his  intention  to  sell,  that  the  presumption 
against  the  prior  gift  becomes  conclusive.^-  And  while  the 
correctness  of  this  principle  might  well  be  doubted  in  its 
application  to  subsequent  purchasers  with  notice,  yet,  as  Lord 
Thurlow  said,  so  many  estates  stand  upon  the  rule  that  it 
cannot  be  now  shaken.^  This  doctrine  applies  to  postnuptial 
settlements  in  England.^ 

Fortunately,  in  this  country  we  have  been  hampered  by  no 
such  severe  construction  of  this  statute.  And  in  a  case  before 
the  Supreme  Court  of  the  United  States  it  was  held  that  the 
"principle  of  construction  which  j)re vailed  in  England,  at  the 
commencement  of  the  American  Revolution,  went  no  further 
than  to  hold  the  subsequent  sale  to  be  presumptive  and  not 
conclusive  evidence  of  ^  fraudulent  intent  in  making  the 
prior  voluntary  conveyance ;  and  the  court  declined  to  follow 
the  subsequently  established  construction  of  Westminster 
Hall.^     And  the  better  American  doctrine  seems  to  be  that 

1  SugdenVend.  &  Purch.  587,  13th  ed. ;  Peachey  Mar.  Settl.  226;  4  Kent 
Com.  463. 

'^  Doe  V.  Manning,  9  East,  59. 

3  Doe  V.  Rusham,  17  Q.  B.  724 ;  16  Jur.  359. 

4  Evelyn  v.  Templar,  2  Bro.  C.  C.  148 ;  Peachey  Mar.  Settl.  228,  and  cases 
cited. 

5  See  Bill  v.  Cureton,  2  Myl.  &  K.  510;  Peachey  Mar.  Settl.  232,  240.  And 
English  conveyancers  insert  words  importing  certain  valuable  considerations  in 
such  deeds,  in  order  to  deter  purchasers. 

6  Catlicartu.  Robinson,  6  Pet.  280;  4  Kent  Com.  463. 

[302] 


POSTNUPTIAL  SETTLEMENTS.  *  281 

voluntary  convej^ances  of  land  lo7ia  fide  made,  and  not 
originally  fraudulent,  are  valid  as  against  subsequent  pur- 
chasers.^ 

*  In  some  States,  the  English  statute  is  re-enacted  *  282 
with  the  language  essentially  changed ;  as  in  Con- 
necticut and  New  York.  And  it  is  the  settled  American 
doctrine  that  a  bona  fide  purchaser  for  value  is  protected, 
whether  he  purchases  from  a  fraudulent  grantor  or  a  fraudu- 
lent grantee  ;  and  that  there  is  no  difference  in  this  respect 
between  a  deed  to  defraud  subsequent  creditors,  and  one  to 
defraud  subsequent  purchasers  ;  both  being  voidable  only 
and  not  absolutely  void.^  So  where  any  marriage  settlement 
is  made  for  a  valuable  consideration,  it  cannot  be  avoided  as 
fraudulent  upon  the  creditors,  unless  both  husband  and  wife 
were  cognizant  of  the  fraud.^ 

There  are  instances  in  which  a  postjwtptial  settlement  has 
been  sustained  against  creditors  and  purchasers  on  the  ground 
that  a  valuable  consideration  is  interposed.  Thus,  Lord  Hard- 
wicke  has  said,  "  If,  after  marriage,  the  father  of  the  ^^  ife,  or 
other  person,  in  consideration  of  the  husband  making  a  settle- 
ment, advance  a  sum  of  money,  such  a  settlement  will  be 
good  and  for  a  valuable  consideration.  And  though  the 
money  be  not  paid  at  the  time,  yet  if  it  be  sufficiently 
secured,  the  settlement  will  stand."  ^     So  voluntary  settle- 

1  4  Kent  Com.  4G4,  n.,  and  cases  cited ;  Jackson  v.  Town,  4  Cow.  G03  ;  Ricker 
V.  Ham,  14  Mass.  139  ;  Atkinson  v.  Phillips,  1  Md.  Ch.  507 ;  Shepard  v.  Pratt, 
32  Iowa,  296  ;  Beal  v.  Warren,  2  Gray,  447.  But  contra,  see  Clanlon  v.  Burges, 
2  Dev.  Ch.  13. 

-  4  Kent  Com.  4G4,  and  cases  cited  in  notes  ;  Anderson  v.  Eoberts,  18  Johns. 
515 ;  Bean  v.  Smith,  2  Mason,  252  ;  Oriental  Bank  v.  Haskins,  3  Met.  332.  So 
the  English  stat.  3  &  4  Will.  4,  c.  27,  §  2G,  protects  bona  Jide  purchasers  for 
value. 

3  Magniac  i'.  Thompson,  7  Pet.  348.  And  see  Ilawcott  v.  Collins,  23  Miss. 
398. 

*  Wheeler  v.  Caryl,  Ambl.  121.  See  further,  Macq.  Hus.  &  Wife,  277  ;  Cottle 
V.  Tripp,  2  Vern.  220  ;  Ward  v.  Shallet,  2  Ves.  Sen.  17  ;  Lavender  i-.  Blackstone, 
2  Lev.  147  ;  Arundell  v.  Phipps,  10  Ves.  140.  Very  slight  considerations  are 
sometimes  deemed  sufficient  in  the  English  courts.  Peachey  Mar.  Sett!.  233, 
238  ;  Butterfield  v.  Heath,  15  Beav.  414  ;  Fitzmaurice  v.  Sadlier,  9  Ir.  Ch.  695  ; 
Hewison  v.  Negus,  IG  Beav.  594 ;  Bayspoole  v.  Collins,  L.  R.  6  Ch.  228.  See 
Foote  V.  Bryant,  47  N.  Y.  544. 

[303] 


♦282  HUSBAND  AND  WIFE. 

ments,  both  in  England  and  this  country,  may  become  valid 
by  matter  ex  post  facto. ^ 

1  Peachey  Mar.  Settl.  236 ;  Prodgers  v.  Langham,  1  Sid.  133  ;  Brown  v. 
Carter,  5  Ves.  877 ;  4  Kent  Com.  403 ;  Sterry  v.  Arden,  1  Johns.  Ch.  2G1 ;  Hus- 
ton I'.  Cantril,  11  Leigh,  136.  In  numerous  instances  tlie  equity  courts  of  this 
country  have  sustained  a  postnuptial  transaction  in  favor  of  the  wife  and  against 
the  husband's  creditors,  on  tlie  ground  of  a  valid  consideration.  As  where  the 
husband  has  transferred  property  to  his  wife  in  consideration  of  paj'ment  from 
her  separate  estate.  Simmons  v.  McElwain,  26  Barb.  420 ;  Bullard  v.  Briggs,  7 
Pick.  533 ;  Ready  v.  Bragg,  1  Head,  511.  And  see  Teller  v.  Bishop,  8  Minn. 
226 ;  Butterfield  v.  Stanton,  44  Miss.  15 ;  Eandall  v.  Lunt,  51  Me.  246.  And 
where  he  conveys  what  her  equity  entitles  her  to  claim.  Poindexter  v.  Jeflries, 
15  Gratt.  363.  And  where  he  has  appropriated  a  like  amount  of  his  wife's  prop- 
erty without  her  consent.  Wiley  v.  Gray,  36  Miss.  510.  So  where  the  wife 
pays  her  husband's  debts  from  her  separate  earnings.  Dygert  v.  Remerschneider, 
30  Barb.  417.  Or  releases  her  dower.  Unger  v.  Price,  9  Md.  552;  Garlick  v. 
Strong,  3  Paige,  440 ;  Hale  v.  Plumnier,  6  Lid.  121  ;  Andrews  v.  Andrews,  28 
Ala.  432.  Some  of  the  later  decisions  speak  of  a  "  reasonable  provision  "  made 
for  the  wife  by  the  husband  wliile  in  prosperous  circumstances.  Babcock  v.  Eck- 
ler,  24  N.  Y.  628 ;  Townsend  v.  Maynard,  45  Penn.  St.  198.  And  the  wife's  relin- 
quishment of  her  equity  to  a  chose  in  action  constitutes  a  valuable  consideration, 
even  perhaps  for  his  settlement  of  the  whole  chose  upon  her.  Bradford  v.  Golds- 
borougli,  15  Ala.  311  ;  Barron  v.  Barron,  24  Vt.  375.  But  where  the  considera- 
tion advanced  by  the  wife  is  inadequate,  equity  will  never  sustain  the  settlement 
further  than  to  secure  the  repayment  thereof,  and  not  always  even  to  this  extent ; 
especially  if  she  be  privy,  with  her  husband,  to  a  fraud  upon  others.  Herschfeldt 
t;.  George,  6  Mich.  456  ;  Skillman  v.  Skillman,  2  Beasl.  403  ;  Farmers'  Bank  i'. 
Long,  7  Bush,  337  ;  Den  v.  York,  13  Ired.  206  ;  Pusey  v.  Harper,  27  Penn.  St. 
469;  2  Kent  Com.  174;  Wilhara  &  Mary  College  v.  Powell,  12  Gratt.  372  ;  and 
see  ch.  13,  supra.  And  a  settlement  of  all  or  the  greater  part  of  the  husband's 
property  upon  his  wife  on  the  plea  of  a  reasonable  provision  for  her  support  is 
not  sustainable  in  equity.  Coates  v.  Gerlach,  44  Penn.  St.  43.  And  see  Lewis 
V.  Caperton,  8  Gratt.  148.  A  settlement  by  a  husband  on  his  wife  in  considera- 
tion of  her  services,  is  voluntary  merely.  Belford  v.  Crane,  1  C.  E.  Green,  265. 
And  see  Keith  v.  Woombell,  8  Pick.  211. 

The  husband's  possession  of  his  wife's  property  is  not  a  badge  of  fraud.  Barn- 
cord  v.  Kuhn,  36  Penn.  St.  383.  Nor  are  his  representations  of  ownership,  as  it 
would  appear,  sufficient  to  charge  such  property  for  his  debts,  unless  deceitful 
and  calculated  to  mislead  the  public.  Lyman  v.  Cessford,  15  Iowa,  229.  And 
in  several  States  it  is  expressly  held,  that  a  voluntary  transfer  or  conveyance 
from  Imsband  to  wife  is  valid  against  all  subsequent  creditors  and  purchasers. 
United  States  Bank  v.  Ennis,  Wright,  605;  Beach  v.  White,  Walk.  Ch.  495; 
Davis  V.  Herrick,  37  Me.  397 ;  Story  v.  Marshall,  24  Tex.  305.  In  New  Jersey, 
however,  tlie  rule,  as  concisely  stated,  is  that  the  husband's  settlement,  if  volun- 
tary, is  fraudulent  as  to  existing  debts  by  an  inference  of  law  ;  and  as  to  subse- 
quent debts,  fraud  in  fact  must  be  proved.  Belford  v.  Crane,  1  C.  E.  Green,  265. 
This  is  the  doctrine  in  New  York  and  many  other  States,  and  indeed  the  better 
American  one.  Reade  v.  Livingston,  3  Johns.  Ch.  481 ;  supra,  p.  28l);  Lyman  v. 
Cessford,  15  Iowa,  229.    And  Chancellor  Kent  has  ruled,  in  the  leading  Amer- 

[304] 


POSTNUPTIAL  SETTLEMENTS.         *  283 

*  The  effect  of  a  postnuptial  settlement,  as  between  *  283 
the  parties  themselves,  and  independently  of  the  rights  of 
creditors,  claims  our  attention  for  the  remainder  of  this  chapter. 
Although  a  direct  gift  of  property  by  the  husband  to  the  wife 
is  void  at  law,  it  will  be  sustained  in  equity,  so  far  as  they 
are  concerned.     In  general,  to  constitute  a  voluntary 
gift  between  *  parties,  it  must  be  comj)lete,  or  courts  of   *  284 
equity  will  not  enforce  it ;  not  only  must  the  intention 
to  give  clearly  appear,  but  that  intention  must  have  been 
executed.^     But  the  rule  is  more  favorable  as  to  a  cestui  que 
trust  claiming  against  his  trustee  ;  ^  and  it  is  thus  perceived 
why  on  general  principles  the  intervention  of  a  trustee  is 
preferable  to  support  the  settlement.     All  voluntary  convey- 

ican  case  on  this  subject,  tliat  if  a  settlement  after  marriage  be  set  aside  by  the 
prior  creditors,  subsequent  creditors  are  entitled  to  come  in  and  be  paid  out  of 
the  proceeds  of  the  settled  estate.  Reade  v.  Livingston,  3  Johns.  Ch.  481.  That 
intended  fraud,  and  this  alone,  should  be  considered,  as  to  a  husband's  subsequent 
creditors,  in  case  of  his  voluntary  settlement  for  his  wife  and  children,  see  Mat- 
tingly  V.  Nye,  8  Wall.  370  ;  Caswell  v.  Hill,  47  N.  H.  407  ;  Phillips  v.  Wooster,  36 
N.  Y.  412 ;  Place  v.  Rhem,  7  Bush,  585  ;  Niller  v.  Johnson,  27  Md.  6.  The  hus- 
band's condition  as  to  his  creditors  is  to  be  regarded  with  reference  to  the  time 
he  made  the  settlement  upon  his  wife,  not  with  reference  to  the  condition  subse- 
quently of  his  estate  upon  his  death.  Leavitt  v.  Leavitt,  47  N.  H.  329.  Concerning 
the  effect  of  a  secret  parol  agreement  between  husband  and  wife  upon  the  rights 
of  intervening  creditors  ignorant  of  such  agreement,  see  Hatch  v.  Gray,  21  Iowa, 
29.  A  husband's  voluntary  conveyance  may,  from  its  very  substance,  be  void 
as  to  all  creditors,  being  an  artifice  to  keep  his  property  out  of  his  creditors' 
hands  in  case  of  future  insolvency  while  using  it  in  trade.  Case  v.  Phelps,  39 
N.  Y.  164;  siiprn,  p.  279.  Equity  will  regard  in  cases  of  this  sort  the  intent, 
notwitlistanding  a  compliance  with  certain  formalities  of  transfer  on  the 
husband's  part.  iNIetropolitan  Bank  v.  Durant,  22  N.  J.  Eq.  35.  That  as  to 
existing  creditors,  the  husband's  intent  to  defraud  should  be  considered,  which 
intent  may  be  inferred  from  his  embarrassment,  see  the  late  cases  of  Redfield  v. 
Buck,  35  Conn.  328;  Gardner  v.  Baker,  25  Iowa,  343 ;  Woolston's  Appeal,  51 
Penn.  St.  452;  Bertrand  v.  Elder,  23  Ark.  494.  But  a  creditor  may  buy  the 
debtor's  property  at  a  sheriff's  sale  and  then  give  it  to  the  debtor's  wife,  for  this 
is  his  own  gift,  not  the  husband's.     Winch  v.  James,  68  Penn.  St.  297. 

The  right  of  a  husband  to  settle  the  surplus  of  property,  over  and  above  what 
he  then  owes,  for  the  benefit  of  wife  and  children,  is  liberally  considered  in 
Gridley  v.  Watson,  53-111.  186,  and  Vance  v.  Smith,  2  Heisk.  343. 

1  Cotteen  v.  Missing,  1  Madd.  176  ;  Kekewich  v.  Manning,  1  De  G.,  M.  &  G. 
188. 

•^  Ellison  V.  Ellison,  6  Vcs.  GG2 ;  Peachey  Mar.  Settl.  245,  246  ;  Meek  v.  Ket- 
tle well,  1  Hare,  470;  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  192;  Beech  v. 
Keep,  18  Bcav.  289. 

20  [  305  ] 


*  284  HUSBAND  AND  WIFE. 

ances,  though  void  against  creditors  and  purchasers  for  value, 
are  good  against  the  grantor  and  those  claiming  under  him.^ 

A  voluntary  promise  does  not  constitute  a  parfect  gift. 
Nor  is  a  voluntary  assignment,  unaccompanied  by  other  acts, 
more  effectual  to  confer  a  title  on  the  donee,  than  a  mere 
agreement,  as  it  has  been  repeatedly  held  in  equity.^  But 
there  is  some  difficulty  in  reconciling  the  authorities  on  this 
latter  subject ;  for  it  has  been  fully  decided  that  the  voluntary 
assignment  of  a  chose  in  action  is  good,  if  the  relation  of  cestui 
que  trust  and  trustees  be  once  established  ;  while,  on  the  other 
hand,  if  one  assigns  to  trustees  certain  property  immediately 
transferable,  the  gift  is  imperfect  without  the  transfer.^  The 
point  of  the  distinction  seems  to  be,  that  in  the  one  case  the 
donor,  by  the  assignment,  not  only  indicates  the  intention  of 
making  a  gift,  but  executes  his  intention  so  far  as  it  is  possible 
for  him  to  do  so  ;  while,  in  the  other,  by  his  failure  to  make 
the  transfer,  he  does  not  execute  his  intention  to  the  extent 
of  his  power,  but  leaves  it  incomplete.  Whatever  may  be 
the  real  principle  involved,  the  authorities  proceed  on  the 
ground  that  a  trust  relation  is  in  the  former  case  created  by 
the  instrument.^ 

It  has  been  repeatedly  held,  in  our  own  courts,  that 

*  285    gifts  *  from  husband  to  wife  are  as  between  themselves 

valid,  and  such  is  now  the  rule  in  most,  but  not  all, 
the  States.  The  evidence  of  intention  should  be  clear  and 
distinct  in  all  such  cases.*  There  should  be  either  a  clear 
irrevocable  gift  to  a  trustee  for  the  wife,  or  some  positive  act 
by  the  husband,  by  which  he  divests  himself  of  the  property, 
and  engages  to  hold  it  for  the  wife's  separate  use.^ 

1  Bill  V.  Cureton,  2  Myl.  &  K.  610  ;  Doe  v.  Rusham,  17  Q.  B.  724. 

'i  Edwards  v.  Jones,  1  M.  &  Cr.  22G  ;  Holloway  v.  Headington,  8  Sim.  324. 

2  See  Bridge  v.  Bridge,  16  Beav.  321 ;  Donaldson  v.  Donaldson,  Kay,  717 ; 
McFaddyn  v.  Jenkyns,  1  Hare,  462;  Peacliey  Mar.  Settl.  247,  248;  Scales  v. 
Maude,  6  De  G.,  M.  &  G.  52  ;  Penfold  v.  Mould,  L.  R.  4  Eq.  562. 

*  Borst  V.  Spelman,  4  Comst.  284;  Coates  v.  Gerlach,  44  Penn.  St.  43;  Jen- 
nings V.  Davis,  31  Conn.  184 ;  George  v.  Spencer,  2  Md.  Ch.  353 ;  Deniing  v. 
Williams,  26  Conn.  226  ;  Reynolds  i'.  Lansford,  16  Tex.  286 ;  Pennsylvania,  &c., 
Co.  V.  Neel,  54  Penn.  St.  9;  Hunt  v.  Johnson,  44  N.  Y.  27 ;  Sims  v.  Rickets,  35 
Ind.  181  ;  Kitchen  v.  Bedford,  13  Wall.  413. 

■    5  The  promissory  note  of  a  creditor  may  be  thus  transferred  by  the  husband 
under  some  of  the  married  women's  acts.     Motley  v.  Sawyer,  38  Me.  68 ;  Diliage 

[  306] 


POSTNUPTIAL  SETTLEMENTS.  *  285 

If  husband  and  wife  may  transfer  property  to  one  another 
without  consideration,  still  more  may  they  do  so  where  the 
consideration  is  valuable.  And  their  mutual  contracts  for  a 
transfer,  Avhere  there  is  a  bona  fide  and  valuable  consideration, 
may  be  specifically  enforced  in  equity,  upon  proof  that  the 

V.  Parks,  31  Barb.  132;  Slawson  v.  Loring,  5  Allen,  840;  and,  independently  of 
such  statutes,  on  equitable  principles.  Tullis  v.  Fridley,  9  Minn.  79.  And  it 
would  appear  to  be  the  rule,  that  the  gifts  of  a  husband  require  less  proof  than 
the  gifts  of  third  persons.  Deruing  v.  WiUiams,  26  Conn.  226.  In  some  States, 
however,  the  wife  is  put  upon  strict  proof  as  to  all  implied  gifts.  Gannard  o. 
Eslava,  20  Ala.  733 ;  Paschall  v.  Hall,  5  Jones  Eq.  108.  The  precise  extent  to 
which  the  rule  of  a  gift  without  a  trustee  will  be  enforced  depends  greatly  upon 
the  liberality  of  the  married  women's  legislation  in  any  particular  State  ;  a  sub- 
ject which  has  already  been  discussed.  But  a  familiar  instance  is  that  of  a 
deposit  by  the  husband  in  some  savings  bank,  on  his  wife's  separate  account. 
Howard  v.  Windham  County  Savings  Bank,  40  Vt.  597.  And  see  Underbill  v. 
Morgan,  33  Conn.  105 ;  Brown  v.  Brown,  23  Barb.  565 ;  Jennings  v.  Davis,  31 
Conn.  134  ;  Wilder  v.  Aldrich,  2  R.  I.  518.  A  deed  of  property  by  the  husband 
in  trust  for  his  wife,  need  not  be  formally  acceptedjjy  her  in  writing  in  order  to 
become  binding.  Ilutchins  i;.  Dixon,  11  Md.  29.  And  a  gift  with  power  to  the 
wife  to  dispose  thereof  by  will  may  be  good  against  tlie  husband's  representa- 
tives. Churchill  v.  Corker,  25  Geo.  479.  But  it  is  said  that  a  man  cannot  denude 
himself  of  his  marital  rigiits  in  property  wliich  the  law  vests  in  him  by  simply 
declaring  that  it  belongs  to  his  wife.  Wade  v.  Cantrell,  1  Head,  346.  See 
Johnston  v.  Johnston,  31  Penn.  St.  4-50  ;  Frierson  v.  Frierson,  21  Ala.  549.  Gifts 
and  voluntary  transfers  by  the  husband  to  third  persons,  if  not  with  the  actual 
intent  of  defeating  the  wife's  rights,  are  held  in  Maryland  to  be  sustainable, 
though  leaving  her  without  the  means  of  subsistence  ;  but  here  the  statutes  of 
Elizabeth  would  apply.     Feigley  v.  Feigley,  7  Md.  537. 

Wood  V.  Warden,  20  Ohio,  518,  treats  a  paper  acknowledging  the  receipt  of 
money  paid  by  the  wife  and  making  collateral  stipulations,  as  a  postnuptial 
settlement  enforceable  against  his  estate  after  his  death  to  the  exclusion  of  his 
other  creditors.  For  cases  of  alleged  fraud  on  the  part  of  husband  or  wife,  see 
Birdsong  v.  Birdsong,  2  Head,  289 ;  Wells  v.  Wells,  35  Miss.  638 ;  M'Clellan  v. 
Kennedy,  3  Md.  Ch.  234. 

The  question  whetlier  a  resulting  trust  is  established  in  certain  property  of 
husband  or  wife,  comes  up  constantly  in  the  latest  American  cases,  with  the 
extension  of  equity  jurisdiction  in  tiie  States  and  the  new  married  women's 
legislation.  Issues  of  this  sort  are  made  up  not  only  where  the  claim  is  that  of 
a  wife  against  her  husband,  or  of  a  husband  against  his  wife,  but  in  controversies 
between  either  one  and  the  creditors  of  the  other.  The. decision  must  be  accord- 
ing to  the  evidence  adduced,  which  is  usually  oral,  deference  being  paid  to 
the  usual  presumptions  as  between  husband  and  wife ;  but  the  ostensible  title 
atforded  by  a  conveyance  or  security  standing  in  the  name  of  the  one  is  tlius 
overthrown  by  proof  tliat  the  property  actually  belonged  by  riglit  to  the  other. 
Among  late  cases  under  this  head,  see  Sweeney  v.  Damron,  47  111.  450 ;  Bent  v. 
Bent,  44  Vt.  555 ;  Cotton  v.  Wood,  25  Iowa,  43 ;  Howe  v.  Colby,  19  Wis.  583 ; 
Cairns  v.  Colburn,  104  Mass.  274. 

[  307  ] 


*  285  HUSBAND   AND  WIFE. 

agreement  has  been  executed  by  one  part}'  and  not  by  the 

other.      Thus  a  husband    and    wife  agreed,  by  parol,  that 

he  should  purchase  a  lot  of  land  in  her  name,  and 

*  286    build  a  house  *  thereon,  and  be  reimbursed  from  the 

proceeds  of  the  sale  of  another  house  belonging  to  her. 
The  husband  having  executed  the  agreement  on  his  part,  the 
■wife  died  suddenly,  before  the  sale  of  her  former  house  could 
be  effected.  She  left  infant  children.  It  was  decreed  in 
equity  that  the  agreement  should  be  carried  into  effect,  the 
former  house  sold,  a  conveyance  thereof  executed  by  the  in- 
fants, by  their  guardian  ad  litem,  and  the  husband  be  reim- 
bursed out  of  the  proceeds  of  the  sale.^  But  the  mere  fact, 
that  the  husband  has  received  property  in  right  of  the  wife, 
cannot  constitute  a  valuable  consideration  by  relation,  to  sup- 
port a  settlement  upon  her  some  years  afterwards ;  and  this 
on  the  general  principle  aj^plicable  to  contracts.^  Nor  can  an 
antenuptial  settlement,  once  extinguished  by  the  agreement 
of  all  parties  concerned,  be  revived  for  such  purpose.^ 

While  instances  of  gifts  from  husband  to  wife  are  most 
commonly  considered,  gifts  from  wife  to  husband  are  by  no 
means  rare.  But  in  the  latter  instance  fraud  or  undue  influ- 
ence may  be  reasonably  suspected  ;  and  transactions  of  this 
sort  are  scrutinized  by  the  courts  with  great  care.^  Before 
the  wife's  separate  use  was  established,  little  or  no  occasion 
could  arise  for  the  wife  to  bestow  her  j)ersonal  property  upon 
her  husband,  for  the  law  sufficiently  bestowed  it  "without  her 
aid. 

In  general,  wherever  a  contract  would  be  good  at  law, 
when  made  with  trustees  for  the  wife,  that  contract  will  be 
sustained  in  equity,  when  made  between  husband  and  wife, 

1  Livingston  v.  Livingston,  2  .Johns.  Cli.  537.  And  see  Bowie  v.  Stonestreet, 
6  Ind.  418  ;  Jones  v.  Jones,  18  Md.  464  ;  Steadman  i;.  Wilbur,  7  E.  1. 481 ;  Peiffer 
V.  Lytle,  58  Penn.  St.  38a. 

^  Lyne  v.  Bank  of  Kentucky,  5  J.  J.  Marsli.  545. 

3  Harper  v.  Scott,  12  Geo.  125. 

4  Cruger  v.  Douglas,  4  Edw.  Ch.  433;  Nedhy  v.  Nedby,  11  E.  L.  &  Eq.  106; 
Converse  v.  Converse,  9  Picli.  Eq.  535;  Stiles  v.  Stiles,  14  Mich.  72;  HoUis  v. 
Francois,  5  Tex.  195 ;  Wales  v.  Newbould,  9  Mich.  45  ;  Merriani  v.  Harsen,  4 
Edw.  Ch.  70.  As  to  gifts  and  loans  of  the  wife's  separate  property  to  her  hus- 
band, including  mortgages,  see  also  ch.  13,  supra. 

[  308  ] 


POSTNUPTIAL   SETTLEMENTS.  *  286 

without  the  intervention  of  trustees.^  A  mutual  agree- 
ment, by  which  the  *  wife  renounces  all  further  claim  *  287 
upon  the  husband  for  his  services,  or  support  for  her- 
self and  children,  and  stipulates  that  she  will  contract  no 
debts  on  his  account,  while  the  husband  renounces  all  claim 
for  her  services  or  support,  affords  a  strong  illustration.  This 
might  not  avail  against  creditors,  but  so  far  as  the  husband 
and  his  heirs,  and  in  fact  all  who  claim  under  him  are  con- 
cerned, it  will  be  enforced.^  But  trustees  are  always  desirable, 
and  in  some  States  it  is  a  rule,  that  the  husband  and  wife  can 
only  contract  with  one  another  through  the  intervention  of 
third  persons.^  This  passes  a  legal  estate  in  any  event  and 
permits  of  suits  relative  to  the  proj^erty  with  more  freedom  ; 
for  it  should  still  be  remembered  that  suits  at  law  between 
husband  and  wife  are  discountenanced  at  the  common  law  ; 
and  their  gifts  and  contracts  generally.  In  no  case  can  con- 
tracts in  derogation  of  the  husband's  pfoperty  rights  rest  upon 
slight  proof ;  the  relation  of  debtor  and  creditor  must  be  dis- 
tinctly shown. '^ 

A  wife  is  sometimes  allowed,  under  a  postnuptial  settlement, 
to  subject  the  property  to  her  husband's  debts.^  And  a  post- 
nuptial settlement  as  to  future  acquisitions  of  real  estate  by 
the  husband  may  sometimes  be  affected  by  his  change  of 
domicile  from  one  country  to  another.*^ 

A  conveyance  by  husband  and  wife  of  land  belonging  to  the 
wife,  to  a  third  person,  and  a  conveyance  of  the  same  land  by 
such  third  person  to  the  husband,  vests  the  entire  title  in  the 

1  Wallingsford  v.  Allen,  10  Pet.  583  ;  2  Story  Eq.  Juris.  §  1204  ;  Slanning  v. 
Style,  3  P.  Wms.  334 ;  Barron  v.  Barron,  24  Vt.  375 ;  Kesor  v.  Resor,  9  Ind. 
847 ;  Coates  v.  Gerlach,  44  Penn.  St.  43  ;  Wright  v.  Wright,  16  Iowa,  49G ;  Wil- 
liams V.  MauU,  20  Ala.  721 ;  SchafFer  i;.  Renter,  37  Barb.  44 ;  Ilutton  v.  Duey, 
3  Barr,  100. 

'-  Barron  v.  Barron,  24  Vt.  375. 

3  McMullen  u.  McMulIen,  10  Iowa,  412 ;  Johnston  v.  Johnston,  1  Grant,  4G8 ; 
Pike  V.  Baker,  53  111.  1G3. 

*  See  Steadman  v.  Wilber,  7  R.  I.  481;  Tripner  v.  Abrahams,  47  Penn.  St. 
220 ;  Wales  v.  Newbonld,  9  Mich.  45. 

*  Muller  V.  Bayly,  21  Gratt.  521. 

8  Fuss  V.  Fuss,  24  Wis.  256.     And  see  supra,  p.  67. 

[  309  ] 


*  287  HUSBAND  AND  WIFE. 

husband.^     But  a  conveyance   of  lands  by  the   wife 

*  288    directly  to  *  her  husband,  especially  if  it  be  voluntary, 

has  been  considered  ineffectual  and  void.  And  even 
under  the  late  married  women's  acts,  her  right  to  make  such 
a  conveyance  is  still  generally,  though  not  universally,  denied.^ 
So  it  is  the  older  rule  that  the  husband  cannot  convey  real 
estate  to  his  wife  directly,  and  without  the  intervention  of  a 
trustee.^  But  the  husband  may  make  a  valid  conveyance  to 
his  wife  through  the  medium  of  a  third  person,  or  under  some 
of  the  latest  statutes,  directly  to  her  ;  and  the  deed  (supposing 
it  to  have  been  properly  recorded)  will  be  good  against  all 
but  injured  creditors.*  The  reason  of  this  rule  was  the  legal 
unity  of  husband  and  wife  at  the  common  law ;  ^  while  the 
statute  of  uses  furnished  a  mode  of  conveyance  through 
trustees.^ 

It  may  here  be  added  that  a  conveyance  of  land  to  husband 
and  A^ife  and  their  heirs,  vests  the  entirety  in  each  of  them  ; 
and  upon  the  death  of  one  the  survivor  takes  the  whole 
estate,  discharged  of  the  other's  debts."  They  do  not  take  by 
moieties  ;  nor  can  either  alienate  the  property  alone  so  as  to 
bind  the  other.  The  theoretic  unity  of  husljand  and  wife 
occasioned  this  rule  likewise.  It  applies  only  to  conveyances 
made  to  them  during  coverture.     In  the  same  way  a  convey- 

1  Merriam  v.  Harsen,  4  Edw.  Ch.  70;  Durant  v.  Ritchie,  4  Mason,  45;  Garvin 
V.  ^gram,  10  Rich.  Eq.  130 ;  Bowen  v.  Sebree,  2  Bush,  112. 

2  White  V.  Wager,  32  Barb.  250 ;  Winans  v.  Peebles,  82  N.  Y.  423 ;  Fowler  v. 
Trebein,  16  Ohio  St.  493.     But  see  Robertson  v.  Robertson,  25  Iowa,  350. 

3  Voorhees  v.  Presbyterian  Church,  17  Barb.  103. 

*  Jewell  V.  Porter,  11  Fost.  34  ;  Motte  v.  Alger,  15  Gray,  322;  Burdeno  v. 
Amperse,  14  Mich.  91. 

5  1  Washb.  Real  Prop.  279. 

6  1  Roper  Hus.  &  Wife,  5*3 ;  Thatcher  v.  Omans,  3  Pick.  521 ;  1  Washb.  Real 
Prop.  279 ;  Wins.  Real  Prop.  185.  Tiie  later  American  cases  are  disposed  to 
sustain  all  such  conveyances,  when  with  valuable  consideration,  upon  equitable 
grounds.  Winans  v.  Peebles,  32  N.  Y.  423;  Putnam  v.  Bicknell,  18  Wis.  333; 
2  Story  Eq.  Juris.  §  1204  ;  Wallingsford  v.  Allen,  10  Pet.  583.  In  Maine,  the 
trustee  is  now  dispensed  with  altogether.  Allen  v.  Hooper,  50  Me.  371.  And  see 
Albin  V.  Lord,  39  N.  H.  196  ;  Fowler  v.  Trebein,  supra. 

t  Wright  V.  Sadler,  20  N.  Y.  320 ;  Banton  v.  Campbell,  9  B.  Monr.  587 ;  Gil- 
son  V.  Zimmerman,  12  Mis.  385 ;  Bates  v.  Seely,  46  Penn.  St.  248 ;  French  v. 
Mehan,  56  Penn.  St.  286. 

[  310  ] 


POSTNUPTIAL  SETTLEMENTS.  *  288 

ance  to  husband  and  wife,  and  a  third  person,  gives  only  a 
moiety  to  husband  and  wife.^  A  judgment  against  a  husband 
does  not  affect  the  joint  estate  of  the  husband  and  wife, 
and  a  decree  in  equity  in  favor  of  such  a  judgment 
*  creditor  can  confer  no  better  title  than  a  sale  of  the  *  289 
premises  under  the  judgment  at  law.^  Nor  can  the 
wife  maintain  ejectment  alone  as  to  such  premises.'^  Where 
the  wife  has  an  estate  for  life,  and  husband  and  wife  are 
seised  of  the  remainder  in  entirety,  the  estate  for  life  does  not 
merge  in  the  estate  in  remainder.^  And  if  the  equitable  title 
to  land  is  in  the  wife,  it  cannot,  of  course,  be  conveyed  to 
husband  and  wife  so  as  to  bar  her  rights.^ 

But  if  lands  descend  to  A.,  B.,  and  C,  they  each  take  a 
third  part,  though  A.  and  B.  happen  to  be  husband  and  wife.^ 
And  it  is  said  that  by  express  words  husband  and  wife  may 
be  made  tenants  in  common  by  a  gift  to  them  during  cover- 
ture." In  Connecticut,  husband  and'^wife  are  joint-tenants, 
and  the  husband  may  convey  his  interest.^ 

Where  a  promissory  note,  too,  or  other  evidence  of  a  debt, 
is  made  payable  to  husband  and  wife  jointly,  it  belongs  to  the 
survivor,  and  may  be  sued  upon  accordingly ;  but  not  if  the 
facts  are  inconsistent  with  that  presumption  of  joint-owner- 
ship, which  a  technical  expression  of  this  sort  would  afford.^ 

Insurance  is  frequently  effected  bj^  a  husband  on  his  own 
life  for  the  benefit  of  his  wife ;  a  provision  most  just  and 
honorable,  if  not  so  unreasonable  in  amount  as  to  defraud 

1  See  1  Washb.  Real  Prop.  278  ;  "Wms.  Real  Prop.  184. 

2  Thomas  v.  De  Baum,  1  McCart.  37;  Tupper  v.  Fuller,  7  Rich.  Eq.  170; 
Davis  V.  Clark,  20  Ind.  424. 

3  Allie  V.  Schmetz,  17  Wis.  169.  .And  see  Tcft-rey  v.  Torrey,  4  Kern.  430 ; 
Clark  V.  Thompson,  12  Penn.  St.  274  ;  Wentworth  v.  Remick,  47  N.  H.  226. 

*  Bomar  v.  MiiUins,  4  Rich.  Eq.  80.  And  see  Brinton  v.  Hook,  3  Md.  Ch. 
477. 

5  Moore  v.  Moore,  12  B.  Monr.  651.  And  see  Hicks  v.  Cochran,  4  Edw.  Ch. 
107  ;  Barncad  v.  Kuhn,  36  Penn.  St.  383 ;  Wright  v.  Sadler,  20  N.  Y.  320  ;  Wales 
V.  Coffin,  13  Allen,  213 ;  1  Washb.  Real  Prop.  278,  and  cases  cited. 

6  Knapp  V.  Windsor,  G  Cash.   156. 

7  Prest.  Abst.  41 ;  1  Washb.  Real  Prop.  278. 

8  Whittlesey  v.  Fuller,  11  Conn.  337. 

9  Sanford  v.  Sanford,  45  N.  Y.  723 ;  Johnson  v.  Lusk,  6  Cold.  113. 

[311] 


*  289  HUSBAND   AND   WIFE. 

one's  antecedent  creditors.  The  subsequent  assignment  by 
wife  and  husband  of  such  a  policy  for  the  benefit  of  the 
latter's  creditors,  is  sustained  in  several  late  cases  ;  while,  due 
reference  being  had  to  the  language  of  every  policy,  it  is  like- 
wise true,  in  general,  that  if  the  husband  survive  the  wife,  for 
whose  benefit  the  policy  was  taken  out,  he  may  dispose  of  it 
otherwise,  and,  with  the  insurer's  consent,  can  have  it  changed 
so  as  even  to  benefit  a  subsequent  wife,  in  case  he  marries 
again.i 

1  See  Pomeroy  v.  Manhattan,  &c.,  Ins.  Co.,  40  111.  398 ;  Emerick  v.  Coakley, 
85  Md.  188 ;  Gambs  v.  Covenant,  &c.,  Life  Ins.  Co.,  50  Mi^.  44  ;  Kerman  v.  How- 
ard, 23  Wis.  108 ;  Stokes  v.  Coffey,  8  Bush,  533  ;  Thompson  v.  American,  &c., 
Ins.  Co.,  46  N.  Y.  674.     And  see  Sohouler  Pers.  Prop.  703-727. 


[312] 


SEPARATION  AND  DIVORCE.  *  290 


*  CHAPTER    XVII.  *290 

SEPARATION     AND     DIVORCE. 

Separation  is  that  anomalous  condition  of  a  married  pair 
whicli  involves  a  cessation  of  domestic  intercourse,  while  the 
impediments  of  marriage  continue.  Either  from  choice  or 
necessity,  as  the  case  may  be,  they  throw  aside  the  strong 
safeguards  of  a  home  and  mutual  companionship  ;  they  forfeit 
their  most  solemn  obligations  to  protect,  love,  and  cherish 
through  life  ;  they  continue  united  in  form  and  divided  in 
fact.  The  spirit  of  the  contract,  all  that  dignifies  and  ennobles 
it,  is  gone ;  but  the  letter  remains,  l^th  parties  submit,  in 
some  degree,  at  least,  to  the  degradation  of  public  scandal ; 
they  are  cast  loose  ujDon  the  world  without  the  right  to  love 
and  be  loved  again  ;  the  thought  of  kindling  fresh  flames  at 
the  altar  of  domestic  happiness  is  criminal  ;  and  deprived  of 
the  comfort  and  support  of  one  another,  finding  in  society  at 
best  but  timid  sympathy  and  consolation,  the  moral  character 
must  be  §trong,  and  doubly  so  must  be  that  of  the  wife,  that 
each  may  buffet  with  success  the  tide  which  bears  onward  to 
destruction.  Such  a  state  of  things  no  public  policy  can 
safely  favor  ;  but  the  law  sometimes  permits  it,  if  for  no  other 
reason  than  that  an  adequate  remedy  is  wanting  to  check  or 
to  prevent  the  evil ;  and  hence  it  may  be  thought  more  ex- 
pedient for  the  courts  to  enforce  such  mutual  contracts  of  the 
unhappy  pair  as  mitigate  their  troubles,  than  to  dabl)le  in  a 
domestic  quarrel  and  try  to  compel  unwilling  companionships. 

This  we  conceive  to  be  the  rightful  position  of  the  English 
and  American  equity  courts  whenever  they  see  fit  to  enforce 
separation  agreements.  Some,  to  be  sure,  are  disposed 
to  *  carry  the  argument  further.  Thus,  recent  EngHsh  *  291 
writers  of  much  repute  refer  to  the  fact  that  divorces 
from  bed  and  board  are  often  granted  in  that  country,  and 
hence  conclude  that  it  is  reasonable  for  the  married  parties 

[313] 


*291  HUSBAND  AND  WIFE. 

themselves  to  compromise  litigation,  save  court  fees,  and  avoid 
public  notoriety,  and  therefore  agree  to  live  apart,  just  as 
though  the  court  had  entered  a  decree  for  that  purpose.^  But 
this  argument  proves  too  much  ;  for  ^if  marriage  and  divorce 
are  matters  for  private  compromise,  like  ordinary  contracts, 
why  should  not  the  discontented  pair,  upon  just  cause,  agree 
to  unloose  the  yoke  altogether?  Why  should  they  not 
sometimes  obtain  divorce  from  the  bonds  of  matrimony  by 
collusion  and  default,  and  thus  take  the  readiest  means  of 
avoiding  scandalous  and  expensive  suits  ?  One  shrinks  from 
such  conclusions.  In  fact,  divorce  laws  do  not  belong  to  the 
parties  themselves,  but  to  the  public ;  government  guards 
the  sanctity  of  marriage,  just  as  it  demands  the  duty  of 
allegiance  ;  only  that  perhaps  its  policy  cannot  be  enforced  in 
the  one  case  as  well  as  the  other.  It  is  because  marriage  is 
not  on  the  footing  of  ordinary  contracts,  that  husband  and 
wife  cannot,  on  principle,  comj^romise,  arbitrate,  or  modify 
their  relationship  at  pleasure.  Furthermore,  the  above  argu- 
ment would  seem  to  suggest  that  where  a  complete  divorce, 
instead  of  divorce  from  bed  and  board,  is  attainable,  deeds  of 
separation  do  not  hold  good  ;  nor,  again,  where  parties  sepa- 
rate for  causes  which  do  not  even  justify  divorce  from  bed 
and  board ;  neither  of  which  positions  is  sustained  by  the 
actual  decisions.  ft 

Lord  Eldon  was  of  the  opinion  that  a  settlement  by  way  of 
separate  maintenance,  on  a  voluntary  separation  of  husband 
and  wife,  was  against  the  policy  of  the  law  and  void.  The 
ground  of  his  opinion  was  that  such  settlements,  creating  a 
separate  maintenance  by  voluntary  agreement  between  hus- 
band and  wife,  were  in  their  consequences  destructive  to  the 

indissoluble  nature  and  the  sanctity  of  the  marriage 
*  292    contract ;  and  *  he  considered  the  question  to  be  the 

gravest  and  most  momentous  to  the    public  interest 
that  could  fall  under  discussion  in  a  court  of  justice.^     And 

1  Macq.  Hus.  &  Wife,  324  et  seq.  See  also  Jacob  h.  to  2  Roper  Hus.  &  Wife, 
277 ;  Peachey  Mar.  Settl.  647. 

2  St.  John  V.  St.  Jolin,  11  Ves.  530.  See  Mortimer  v.  Mortimer,  2  Hag. 
Consist.  Rep.  318  ;  Legard  v.  Johnson,  3  Ves.  352 ;  Mercein  v.  People,  25 
Wend.  77. 

[314] 


SEPARATION  AND  DIVORCE.         *  292 

Chancellor  Kent  sums  up  his  authorities,  which  show  that  a 
private  separation  is  an  illegal  contract,  a  renunciation  of 
moral  duties,  in  the  emphatic  words :  "  Nothing  can  be 
clearer  or  more  sound  than  this  conjugal  doctrine."  ^ 

But  in  England  final  and  complete  dissolution  of  marriage 
was,  until  quite  recently,  attainable  only  by  act  of  Parlia- 
ment. And  this  method  of  procedure  was  found  so  difficult, 
expensive,  and  uncertain,  that  parties  who  could  not  live 
peaceably  together  were  led  to  consider  some  lesser  means  of 
mitigating  their  misfortune.  To  be  sure  the  ecclesiastical 
courts  awarded  sentences  of  divorce  from  bed  and  board  ; 
but  these  merely  discharged  the  parties  from  the  duty  of  co- 
habitation, permitting  them  to  come  together  afterwards  if 
they  should  so  choose  ;  and  therefore,  as  a  writer  observes, 
these  sentences  "  did  not  often,  it  must  be  owned,  repay  the 
pains  bestowed  in  obtaining  them."^  The  course  of  the 
ecclesiastical  courts  seems  however  fo'have  turned  husband 
and  wife  to  their  own  devices  for  effecting  the  same  result, 
with  less  dela}'  and  annoyance,  and  in  order  to  adjust  more 
completely  those  property  arrangements  which  never  could 
be  forgotten  in  their  misery.  Deeds  of  settlement,  trusts, 
and  the  intervention  of  the  equity  courts,  readily  furnished 
a  plan  of  operations  ;  and  the  ubiquitous  conveyancer  ap- 
peared once  more  upon  the  stage  to  open  the  wa}^  through 
subtle  refinements,  to  freedom  for  discontented  couples,  and 
emolument  for  himself. 

After  a  prolonged  struggle,  and  in  spite  of  public  policy,  it 
is  therefore  fully  established  at  length  in  England,  as  a  doc- 
trine of  equity,  that  deeds  of  separation  may^nd  must, 
if  properly  framed,  be  *  carried  into  execution  by  the  *  293 
courts.^  They  may  be  enforced  in  the  common-law 
courts  indirectly  through  the  medium  of  covenants  which  are 
entered  into  between  the  husband  and  trustees  ;  and  in  equity 
specific  performance  will  be  decreed  where  the  stipulations 

1  2  Kent  Com.  177,  n.,  where  other  cases  are  cited. 

2  Macq.  Hus.  &  Wife,  326.     See  Hope  v.  Hope,  3  Jur.  n.  s.  456 ;  s.  c.  26  L. 
J.  Eq.  425;  Peachey  Mar.  Settl.  620;  H.  v.  W.,  8  Kay  &  Johns.  386,  387. 

3  Wilson  V.  Wilson,  1  Ho.  Lords  Cas.  538  ;  5  Ho.  Lords  Cas.  59  ;  Peacliey  Mar. 
Settl.  620,  and  cases  cited ;  Macq.  Hus.  &  Wife,  329. 

[315] 


*  293  HUSBAND  AND  WIFE. 

are  not  contrary  to  law  nor  in  contravention  of  public  policy.^ 
An  agreement  between  husband  and  wife  to  live  apart  is  still 
void  as  against  public  policy ;  but  the  husband's  covenant 
with  a  third  party  may  be  valid  and  binding,  although  it 
originates  in  this  unauthorized  state  of  separation  and  relates 
directly  to  it.^  And  the  English  chancery  court  will  now  go 
so  far  as  to  enforce  specific  performance  of  a  written  agree- 
ment for  a  separation  deed  made  between  a  husband  and  his 
wife's  father.^ 

It  may  seem  strange  that  such  an  auxiliary  agreement 
should  be  enforced,  while  the  principal  agreement  is  held 
contrary  to  the  spirit  and  policy  of  the  law.  Lord  Eldon, 
who  strongly  opposed  the  whole  doctrine  on  principle,  said 
that  if  the  question  were  res  integra^  untouched  by  dictum  or 
decision,  he  would  not  have  permitted  such  a  covenant  to 
be  the  foundation  of  a  suit  in  equity.^  Sir  William  Grant 
appears  to  have  been  the  first  to  call  attention  to  the  incon- 
sistency of  the  courts  in  this  respect ;  and  his  remark  has 
come  down  through  the  later  judges.^  Lord  Rosslyn,  how- 
ever, hit  upon  the  explanation  that  an  agreement  for  a  sepa- 
rate provision  between  the  husband  and  wife  alone  is  void, 
merely  from  the  general  incapacity  of  the  wife  to  contract :  ^ 
an  explanation  which,  we  submit,  is  quite  unsatisfactory." 
The  true  reason  for  the  anomalous  distinction  appears  to  be 
simply  this  :  that  contracts  for  separation  are  in  general  void 
as  against  public  policy,  but  that  the  courts  saw  fit  to  let  in 
exceptions  so  far  as  to  enforce  the  covenants." 

A  husband  has  no  right  to  retain  copies  of  his  wife's  jour- 
nals and  diaries'which  he,  under  a  separation  deed,  has  cov- 

1  Vansittart  v.  Vansittart,  2  De  Gex  &  Jones,  249. 

2  Worrall  v.  Jacob,  3  Mer.  25-5  ;  Peacliey  Mar.  Settl.  621 ;  Sanders  i;.  Rod- 
ney, 16  Beav.  211;  Warrender  v.  Warrender,  2  CI.  &  Fin.  488. 

'^  Gibbs  V.  Harding,  L.  R.  5  Ch.  336.  See  further,  opinions  in  Rowley  v.  Row- 
ley, L.  R.  1  H.  L.  Sc.  63. 

4  Westmeath  v.  Westmeath,  Jac.  126  ;  2  Kent  Cora.  176. 

5  See  Jone.s  v.  Waite,  5  Bing.  361 ;  Frampton  v.  Frampton,  4  Beav.  293. 

6  Legard  v.  Johnson,  3  Ves.  Jr.  352.  See  2  Bright  Hus.  &  Wife,  306,  n.  by 
Jacob. 

^  See  Peachey  Mar.  Settl.  closing  chapter,  for  the  details  of  the  English  doc- 
trine. 

[316] 


SEPARATION  AND  DIVORCE.  *  293 

enanted  to  deliver  iip.^  And  where  no  separation  actually 
takes  place,  the  deed  of  separation  is  wholly  void.^  If  some 
covenants  in  the  deed  are  legal  and  proper,  and  others  are 
not,  the  former  are  enforceable  by  themselves/^ 

*  Deeds  of  separation  were  never  very  common  in  *  294 
the  United  States.^  And  there  are  at  least  three  very 
good  reasons  why  they  should  be  at  this  day  less  encouraged 
than  in  England.  The  first  is  that  our  legislation  strongly 
favors  the  separate  control  of  married  women  as  to  their  own 
acquisitions,  without  the  intervention  of  trustees  and  formal 
deeds  of  settlement,  thus  dispensing  with  the  necessity  of 
intricate  property  arrangements.  The  second  is  that  equity, 
ecclesiastical,  and  common-law  functions  are  usually  blended 
in  the  same  courts  of  final  appeal,  so  that  a  State  is  at  liberty 
to  adopt  the  precedents  of  the  ecclesiastical  rather  than  the 
modern  equity  tribunals  of  England  f©i?-its  guidance  ;  Avhile 
an  American  court,  on  the  other  hand,  could  not  admit  clearly 
the  right  of  parties  to  declare  terms  of  private  separation, 
without  bringing  confusion  and  uncertainty  upon  its  own 
divorce  and  matrimonial  jurisdiction.  The  third  is  that  sen- 
tences of  divorce  are  procured  in  most  American  States  with 
great  ease,  moderate  expense,  and  little  publicit3\  There  are, 
however,  individual  American  cases  where  separation  deeds 
have  been  recognized  so  far  as  to  permit  and  sometimes  re- 
quire parties  to  perform  such  marital  duties  as  were  incum- 
bent upon  them,  notwithstanding  separation.^  The  New 
England  States  do  not  in  general  seem  to  have  sanctioned 

1  Hamilton  v.  Hector,  L.  R.  13  Eq.  511.     See  Pride  v.  Bubb,  L.  R.  7  Ch.  G4. 

2  JJindley  v.  MuUoney,  L.  R.  7  Eq.  343. 

3  Ilaniilton  v.  Hector,  supra. 

*  1  liisli.  Mar.  &  Div.  §  639  et  seq.;  Read  i'.  Beazley,  1  Blackf.  97  ;  Bcttle  v. 
Wilson,  1  Ohio,  257  ;  Goodrich  v.  Bryant,  4  Sneed,  325;  McCubbin  i'.  Patter-on, 
10  Md.  179  ;  Beach  v.  Beach,  2  Hill,  200;  Griffin  v.  Banks,  37  N.  Y.  621  ;  Joyce 
V.  McAvoy,  31  Cal.  273;  Walker  y.  Stringfellow,  30  Tex.  570;  Hitner's  Appeal, 
54  Penn.  St.  1 10 ;  Loud  v.  Loud,  4  Bush,  453 ;  Dutton  v.  Dutton,  30  lud.  4.32 ; 
Robertson  v.  Robertson,  25  Iowa,  350;  McKee  v.  Reynolds,  26  Iowa,  578. 

5  lb.  See  1  Bish.  Mar.  &  Div.  5th  ed.  §§  630-055,  and  cases  cited.  Our  limits 
forbid  an  extended  discussion  of  this  subject.  The  English  ecclesiastical 
courts  steadily  refused  to  recognize  separate  deeds.     1  Blsh.  ib.  §  034. 

[317] 


*  294  HUSBAND  AND  WIFE. 

them  at  all.^  And  a  recent  North  Carolina  case  distinctly 
maintains  what  ought  to  and  may  yet  become  the  pronounced 
American  doctrine :  that  separation  deeds  are  void  as  against 
law  and  public  policy .^ 

*  295        *  As  to  the  right  of  the  wife,  when  abandoned  by  her 

husband,  to  earn,  contract,  sue,  and  be  sued,  to  much 
the  same  effect  as  a  feme  sole,  while  such  abandonment  lasts: 
the  current  of  American  authority,  legislative  and  judicial 
alike,  decidedly  favors  so  just  a  doctrine.^  And  in  England 
recent  statutes  secure  to  a  married  woman  privileges  to  a  sim- 
ilar extent  under  like  circumstances.^ 

1  See  Albee  v.  Wyman,  10  Gray,  222. 

2  Collins  V.  Collins,  1  Phill.  N.  C.  Eq.  153.  And  see  Garver  v.  Miller,  16 
Ohio  St.  527.  A  voluntary  deed  of  separation  will  not  bar  a  bona  fide  applica- 
tion for  divorce.  J.  G.  v.  H.  G.,  33  Md.  401.  Under  the  new  divorce  acts,  20 
&  21  Vict.  c.  85 ;  21  &  22  Vict.  c.  108,  extending  the  facilities  of  legal  -separa- 
tion, there  may  be  a  change  effected  in  the  English  rule.  That  the  public 
sentiment  of  England  differs  widely  from  that  of  America  as  to  requiring 
intervention  of  the  State  through  its  own  judicial  tribunals  for  separating 
parties  who  ought  not  to  live  together,  is  illustrated  by  the  comments  of  a  recent 
English  text-writer,  who,  after  admitting  that  under  the  new  statutes  "  a  more 
effectual  separation  can  be  obtained  than  tinder  a  simple  deed  or  agreevient  to  live 
apart,"  coolly  proceeds  to  state  that  deeds  of  separation  may  yet  be  preferred, 
since  they  are  availableybr  purposes  which  do  not  justify  a  legal  cjrant  of  separation, 
and  that  "  even  "in  those  instances  in  which  the  court  affords  relief,  many,  if  not 
most  persons  ivill  prefer  quietli/  arranging  their  differences  by  deed,  to  painful  discus- 
sions in  a  public  court  of  justice."     Peachey  Mar.  Settl.  647,  648. 

'  See  Sliaw,  C.  J.,  in  Abbott  v.  Bayley,  6  Pick.  89;  Benadum  v.  Pratt,  1  Ohio 
St.  403 ;  Spier's  Appeal,  2  Casey,  233 ;  Mead  v.  Hughes,  15  Ala.  141 ;  Eliea  v. 
Rhenuer,  1  Pet.  105;  Moore  v.  Stevenson,  27  Conn.  14;  Smith  v.  Silence,  4 
Iowa,  321 ;  Love  v.  Moynehan,  16  111.  277 ;  Wilson  v.  Brown,  2  Beasl.  277 ; 
Abshire  v.  Mather,  27  Ind.  381;  Stith  i-.  Patterson,  3  Bush,  132;  Harrison  v. 
Stewart,  3  C.  E.  Green,  461 ;  Frary  v.  Booth,  37  Vt.  78.  In  Coughhn  v.  Ryan, 
43  Mis.  99,  the  deserting  husband's  rights  are  excluded  in  the  wife's  separate 
property  even  after  her  death.  And  see  the  numerous  statutes  in  almost  every 
State  in  the  Union,  enlarging  the  rights  of  married  women  in  such  cases.  And 
see  p.  244,  supra.  A  careful  examination  of  these  and  of  the  cases  cited  by  Mr. 
Bishop,  leads  the  writer  to  views  entirely  different  from  those  expressed  by  him. 
1  Bish.  Mar.  &  Div.  5th  ed.  §  610  et  seq.  The  rule  would  not  extend  to  suits  for 
partition  of  lands  held  by  husband  and  wife  as  tenants  in  common.  McDermott 
V.  French,  2  McCart.  78. 

*  See  Stat.  20  &  21  Vict.  c.  85 ;  Midland  R.  R.  Co.  v.  Pye,  10  c'  B.  n.  s.  179. 
Chancery  has  long  moulded  its  proceedings  to  secure  a  like  privilege.  See  In  re 
Lancaster,  23  E.  L.  &  Eq.  127 ;  Johnson  v.  Kirkwood,  4  Dru.  &  War.  379.     See 

[318] 


SEPARATION  AND  DIVORCE.  *  '2r5 

A  few  words  may  be  added  on  the  topic  of  divorce.  Di- 
vorce laws  have  constantly  given  rise  to  most  interesting  and 
earnest  discussions  ;  and  men  differ  very  widely  in  their  con- 
clusions, while  all  admit  the  subject  to  be  of  the  most  vital 
importance  to  the  peace  of  families  and  the  welfare  of  nations. 
Some  favor  a  rigid  divorce  system  as  most  conducive  to  the 
moral  health  of  the  people ;  others  urge  a  lax  system  on  the 
same  grounds.  On  two  points  6nly  do  English  and  American 
jurists  seem  to  agree  :  first,  that  the  government  has  the  right 
to  dissolve  a  marriage  during  the  lifetime  of  both  parties,  pro- 
vided the  reasons  are  weighty ;  second,  that,  unless  those 
reasons  are  weighty,  husband  and  wife  should  be  divorced 
only  by  the  hand  of  death. 

The  ancient  nations,  all  recognizing  the  necessity  of  some 
divorce  legislation,  differed  in  their  methods  of  treatment. 
Among  the  Greeks,  despite  their  intellectual  refine- 
ment, the  *  marriage  institution  w^as  degraded,  even  *  296 
in  the  palmiest  days  of  Athens.  The  husband  could 
send  away  his  wife,  and  the  wife  could  leave  her  husband. 
The  procedure  in  such  cases  was  quite  simple,  being  appar- 
ently nothing  more  than  a  formal  notice  filed  with  the  judicial 
magistrate,  unless  the  parties  were  disposed  to  contend ;  in 
which  case  they  went  to  trial.  If  they  agreed  to  be  divorced, 
that  would  be  enough ;  hence  the  law  was  in  their  own 
hands  ;  and,  if  divorced,  they  might  marry  again  at  pleasure.^ 
In  Home,  more  of  the  moral  and  religious  element  prevailed  ; 
and  so  strict  was  the  divorce  law  in  the  early  days,  that  no 
divorce  is  supposed  to  have  occurred  for  more  than  five  hun- 
dred years  from  the  foundation  of  the  city  :  a  tradition  which 
those  who  pretend  to  fix  the  year  of  such  foundation  have 
not  found  difficulty  in  believing.  The  first  recorded  instance 
is,  however,  that  of  Spurious  Canilius  Ruga,  B.C.  231 ;  and 
even  this  was  a  case  of  barrenness,  which  hence  fell  possibly 

Walil  V.  Braun,  38  E.  L.  &  Eq.  300 ;  Macq.  Hus.  &  Wife,  99,  107,  108 ;  In  re 
Rogers,  L.  R.  1  C.  P.  47  ;  McHenry  v.  Davies,  L.  R.  10  Eq.  88. 

1  See  p.  31  of  Dr.  Woolsey's  Treatise  on  Divorce  and  Divorce  Legislation, 
a  little  work  recently  published,  which  exhibits  much  careful  researcli  and 
scholarship,  and  clearly  presents  the  recent  legislation  of  England  and  America 
affecting  this  subject. 

[319] 


*  296  HUSBAND  AND  WIFE. 

under  the  modern  head  of  void  and  voidable  marriages.^  But 
ancient  Rome  was  built  on  family  discij)line,  rather  than  do- 
mestic love  ;  and  the  stately  and  somewhat  severe  Roman 
matron  disappeared  entirely  in  the  later  dissolute  and  cor- 
rupt years  of  the  Roman  republic,  and  before  an  empire  suc- 
ceeded it.2 

The  ideal  of  marriage  among  the  Hebrews  was  high :  that 

husband  and  wife  should  cleave  together  and  be  one  flesh ; 

nevertheless,  the  usage  of  this  nation,  founded  upon 

*  297    the  Mosaic  *  code,  permitted  the  husband,  as  it  would 

seem,  to  dismiss  his  wife  at  pleasure.^ 
It  was  this  latter  custom  which  called  forth  the  merited 
rebuke  of  Christ,  and  occasioned  him  more  than  once  to  sug- 
gest a  higher  standard  of  marital  constancy.  These  sugges- 
tions man}^  have  construed  into  an  absolute  prohibition  of 
divorce  except  for  the  cause  of  adultery.  Without  accepting 
this  construction  of  Scripture  as  the  true  one,  or  admitting 
all  of  the  forced  conclusions  of  commentators,  which,  whether 
correct  or  incorrect,  must  ever  remain  a  matter  for  unsettled 
.controversy,"^  we  may  clearly  trace  in  the  New  Testament 

1  See  1  Bish.  Mar.  &  Div.  5th  ed.  §  23 ;  Woolsey  Div.  41. 

'^  Horace  divined  a  true  cause  of  Kome's  decay,  when  he  wrote,  — 

"  Fecunda  culpas  seeula  nuptias 
Primura  inquinavere  et  genus  et  domos. 
Hvc  fonte  derivata  clades 
In  patriam  populumque  fluxit."  —  Carm.  Lib.  iii.  6. 

See  Woolsey  Div.  44  et  seq.,  where  some  of  the  historical  instances  are  cited. 

3  Deut.  xxiv. ;  1  Bish.  Mar.  &  Div.  5th  ed.  §  25;  Woolsey  Div.  24. 

*  For  the  discussion  of  this  question  the  reader  is  referred  to  Woolsey  Div. 
61  et  seq.,  and  authorities  in  1  Bish.  Mar.  &  Div.  5th  ed.  §  25,  n.,  where  it  will  be 
perceived  that  writers  on  these  New  Testament  texts  are  diametrically  opposed 
to  one  another.  The  passages  impoi'tant  to  the  issue  are  Matt.  v.  31,  32 ;  xix. 
3-9;  Mark  x.  2-12;  Luke  xvi.  18.  The  present  writer  merely  renunds  strict 
constructionists  of  that  well-known  instance,  where  Christ  refused  to  cast  a 
stone  at  the  adulterous  woman,  and  bade  her  go  and  sin  no  more,  as  evincing 
that  the  great  Christian  Teaclier  had  no  design  of  ingrafting  his  code  of  morals, 
as  a  mere  amendment,  upon  the  Mosaic  divorce  law  ;  which,  as  we  understand 
it,  would  then  have  signified  that  a  husband  might  "put  away"  his  wife  "for 
adultery  and  have  her  stoned  to  death  ;  that  the  wife  could  get  no  divorce  at  all; 
and  t!iat  government  was  not  concerned  in  the  matter.  Even  Dr.  Woolsey 
seems  compelled  to  admit  that  St.  Paul  sanctioned  divorce  for  desertion.  See 
bis  comments  (p.  70  et  seq.)  upon  1  Cor.  vii.  15.     See  also  1  Bish.  Mar.  &  Div. 

[  320  J 


SEPARATION  AND   DIVORCE.  *  297 

writings  an  intent  to  bring  into  prominence  the  moral  obliga- 
tions of  the  marriage  state,  to  discountenance  lax  and  tem- 
porary unions,  and  to  warn  the  legislator  that  those  whom  God 
hath  joined  man  may  not  with  impunity  put  asunder  for  any 
trivial  cause. 

The  influence  of  Christianity  has  been  felt  in  modern 
Europe ;  spreading  to  England,  whence,  too,  it  was  brought 
to  the  wilds  of  America ;  the  Christian  rule  ever  shaping  the 
policy  of  government.  But  this  rule  has  received  different 
methods  of  interpretation. ^  The  Church  of  Rome  treats 
marriage  as  a  sacrament,  and  indissoluble  without  a 
special  dispensation,  *  even  for  adultery.  Protestants  *  298 
are  divided  ;  all  regarding  adultery  as  a  sufificient  cause 
of  divorce,  many  considering  desertion  equally  so,  others  cru- 
elty ;  while  a  strong  current  of  authority  in  this  country  tends 
to  multiply  the  legal  occasions  for  divorce  even  down  to  such 
pretexts  as  incompatibility  of  temper.^  So  loose,  indeed,  and 
so  confusing,  is  our  State  marriage  and  divorce  legislation 
becoming,  that  it  might  be  well  to  ask  whether  the  cause  of 
morality  would  not  be  promoted,  if,  by  constitutional  amend- 
ment, the  whole  subject  were  placed  in  the  control  of  the 
general  government ;  so  that,  at  least,  one  uniform  system 
could  be  applied,  and  the  experiments  of  well-meaning  re- 
formers be  subjected  to  an  unerring  and  crucial  test. 

The  leading  ground  of  divorce  is  adultery  ;  but  besides 
this,  desertion,  cruelty,  and  kindred  offences  are  frequently 
recognized  as  sufficient;  and  these  kindred  offences  are  greatly 
extended  by  statute  in  many  of  the  United  States.  Divorce 
may  be  granted  from  bed  and  board,  or  from  the  bonds  of 
matrimony  ;  the  former,  which  is  a  sort  of  judicial  separation, 
being  applied  to  the  less  heinous  offences  ;  while  the  latter, 
which  alone  is  complete,  is  the  remedy  for  the  greater  of- 
fences ;  or,  according  to  the  English  policy,  for  adulter}^  only. 
The  one  is  partial  divorce ;  the  other  final  and  full  divorce.^ 

§  26,  n.  Wliile  it  may  well  be  doubted  wiiether  tlie  New  Testament  prescribes 
an  inflexible  code  to  bind  all  legislators,  it  is  clear  tliat  all  approach  to  "  free 
marriage  "  is  therein  discountenanced. 

1  1  Bish.  Mar.  &  Div.  §  25;  Woolsey  Div.  87  et  seq. 

2  Conn.  Laws,  1849     Woolsey  Div.  205. 

3  See  1  Bish,  Mar.  &  Div.  5th  ed.  §  S'J. 

i^i  [  321  ] 


*  298  HUSBAND   AND   WIFE. 

The  principle  of  enforcing  the  specific  performance  of  mar- 
riage vows,  though  perhaps  theoretically  commendable,  proved 
in  practice  utterly  futile  ;  as  was  seen  in  the  remedy  for 
restitution  of  conjugal  rights,  which  fell  into  disrepute  and  is 
now  disused.^  But  some  check  being  proper  upon  decrees  so 
momentous  as  those  of  divorce,  we  find  in  the  English 
system  the  principle  of  decrees  7iisi,  which  give  delay  for 
remedying  error  or  affording  to  the  parties  a  final  oppor- 
tunity for  reconciliation.     Decrees  of  divorce  from  bed 

*  299    and  *  board  subserve  in  the  policy  of  some  States  a 

like  wise  purpose  ;  otherwise,  they  are  of  very  doubtful 
expediency,  and  apparently  originated  in  the  compromise  of 
canonists  between  human  necessities  and  scriptural  misinter- 
pretation.^ 

It  appears  to  have  been  settled  in  this  country,  notwith- 
standing some  previous  diversity  of  opinion  on  the  subject, 
in  the  various  States,  that  a  wife  may  so  far  change  her  domi- 
cile as  against  her  husband,  after  an  offence  on  his  part 
justifying  her  in  doing  so,  as  to  obtain  in  the  new  domicile 
jurisdiction'^or  dissolving  the  marriage.  In  other  words,  she 
may  move  into  a  new  State  where  loose  divorce  legislation 
prevails,  leaving  the  State  with  its  more  rigid  system  of  laws 
behind  her,  where  the  offence  was  committed  and  her  husband 
retains  his  own  domicile,  and  here  obtain  a  decree  of  divorce 
in  her  favor  which  every  State  is  bound  to  recognize  as  valid.^ 
But  it  is  still  to  be  supposed  that  her  change  of  domicile  in 
such  a  case  should  be  made  in  good  faith,  and  without  fraudu- 
lent intent. 

The  effect  of  divorce  from  bonds  of  matrimony  upon  the 

1  See  1  Bish.  Mar.  &  Div.  5tli  ed.  §  31. 

2  See  1  Bish.  Mar.  &  Div.  5th  ed.  §  29.  As  to  tlie  specific  causes  of  divorce 
and  procedure,  see  1  Bish.  Mar.  &  Div.  5th  ed.  §  703  et  seq. ;  1  Fraser  Dom.  Rel. 
656 ;  2  Keut  Com.  10.  And  see  Woolsey  Div.  Tlie  leading  causes  of  divorce 
as  defined  by  statute,  next  to  adultery,  are  desertion  and  cruelty  ;  and  the 
minor  causes,  such  as  lengthened  imprisoiniient,  habits  of  intoxication,  and 
neglect  to  support,  generally  involve  these  same  elements. 

3  Cheever  v.  Wilson,  9  Wall.  108.  See  further,  Kinnier  t'.  Kinnier,  45  N.  Y. 
535;  Hood  v.  Hood,  11  Allen,  196 ;  Shaw  v.  Attorney-General,  L.  R.  2  P.  &  D. 
156. 

[  322  ] 


SEPARATION  AND  DIVORCE.        ^   *  299 

property  rights  of  married  parties  is  substantially  that  of 
death,  or  rather  annihilation.  This  is  a  topic  upon  which 
the  common  law,  from  the  infrequency  of  divorce,  furnishes 
no  light,  except  by  analogies.  The  settled  usage  of  Parlia- 
ment has  been  to  introduce  property  clauses  to  such  effect 
into  the  sentence  of  dissolution  regulating  the  rights  and  lia- 
bilities of  the  respective  parties.^  Even  in  these  cases  the 
rights  of  divorced  parties  as  to  tenancy  by  the  curtesy,  chat- 
tels real,  and  rents  of  the  wife's  lands  are  still  unsettled ;  and 
in  general,  the  consequence  by  act  of  Parliament  "  does  not 
very  clearly  appear."  ^ 

But  under  the  new  English  divorce  act,*^  it  is  held  in  a  very 
recent  case  that  where  the  wife  at  the  date  of  the  decree  of 
divorce  a  vinculo  was  entitled  to  a  reversionary  interest  in 
a  sum  of  stock  which  was  not  settled  before  her  marriage  and 
had  been  the  subject  of  a  postnuptial  settlement ;  and  after 
the  decree  the  fund  fell  into  possession  ;  her  divorced  hus- 
band had  no  right  to  claim  it.  Says  Vice-Chancellor  Wood  ; 
"  Here  the  contract  has  been  determined  by  a  mode  unknown 
to  the  old  law,  namely,  by  a  decree  of  dissolution  ;  and 
as  the  *  husband  was  unable  during  the  existence  of  *  300 
the  contract  to  reduce  this  chattel  into  possession,  I 
must  hold  that  the  property  remained  the  property  of  the 
wife."  *  The  English  doctrine  as  thus  indicated  is  that  the 
same  consequences  as  to  jjroperty  must  follow  the  decree  of 
dissolution  by  the  divorce  court  as  if  the  marriage  contract 
had  been  annihilated  and  the  marriage  tie  severed  on  that 
date  ;  such,  too,  is  the  spirit  of  the  latest  cases.^  And  where 
a  decree  of  dissolution  nisi  is  first  entered,  becoming  absolute 
afterwards,  it  takes  effect  from  the  date  of  the  decree  nisiJ' 


1  Macq.  Hus.  &  Wife,  210,  214.  2  2  Rriglit  Hus.  &  Wife,  3G0. 

•'  Stats.  20  &  21  Vict.  c.  85  ;  21  &  22  Vict.  c.  108;  23  &  24  Vict.  c.  144. 
Tiiese  iniiKtrtant  acts,  wliich  create  a  new  court  for  divorce  and  matrimonial 
causes,  m  talcing  jurisdiction  from  tlie  ecclesiastical  courts  and  e.xtending  legal 
facilities  for  divorce,  date  a  new  era  in  English  jurisprudence.  The  first  of  these 
acts  took  effect  in  1858. 

••  Wilkinson  v.  Gibson,  L.  R.  4  Eq.  1G2 ;  Pratt  v.  Jenner,  L.  R.  1  Ch.  493; 
Fussell  V.  Dowding,  L.  R.  14  Eq.  421.  So  as  to  torts.  Capel  v.  Powell,  17 
C.  B.  N.  s.  743. 

-  Prole  V.  Soadv,  L.  R.  8  Ch.  220. 

[  323  ] 


*  300  HUSBAND   AND   WIFE. 

In  this  country,  the  effect  of  divorce  a  vinculo  is  frequently 
regulated  by  statute.  And  in  general  all  transfers  of  property 
actually  executed  before  divorce,  whether  in  law  or  in  fact, 
remain  unaffected  by  the  decree.  For  instance,  personal  choses 
of  the  wife,  already  reduced  to  possession  by  the  husband,  re- 
main his.i  But  as  to  rights  dependent  on  marriage  and  not 
actually  vested,  divorce  ends  them.  This  applies  to  curtesy, 
dower,  the  right  to  reduce  choses  into  possession,  and  property 
rights  under  the  statutes  of  distribution.^  These  doctrines 
are  set  forth  in  local  codes,  which  frequently  save  certain 
rights,  — -  such  as  the  wife's  dower  where  divorce  is  occasioned 
by  her  husband's  misconduct.  And  as  to  torts  a  similar  rule 
would  probably  apply.^ 

On  the  other  hand,  if  the  husband  receives  any  property  of 
the  wife  after  divorce,  she  may  recover  it  in  a  suit  for  money 
had  and  received.*  How  far  on  the  divorce  of  the  husband 
his  assignee  may  claim  against  the  wife  does  not  clearly  ap- 
pear ;  but  where  the  divorce  was  obtained  through  his  fault, 
the  wife's  equitable  provision,  it  seems,  will  be  favorably  re- 
garded as  against  him.^     Divorce  takes  away  the  hus- 

*  301    band's  *  right  of  administration,  upon  the  estate  of  his 

divorced  wife.^    Such  are  some  of  the  effects  of  divorce 
a  vinculo. 

Divorce  from  bed  and  board  produces,  however,  no  such 
definite  results ;  the  cardinal  doctrine  here  being  that  the 
marriage  remains  in  full  force,  although  the  parties  are  al- 

1  2  Bisli.  Mar.  &  Div.  5th  ed.  §  705  et  seq. ;  Lawson  v.  Shotwell,  27  Miss. 
630. 

'■i  2  Bish.  ib. ;  Dobson  v.  Butler,  17  Mis.  87 ;  4  Kent  Com.  53,  n.,  54 ;  Given 
V.  Marr,  27  Me.  212;  Wheeler  v.  Hotchkiss,  10  Conn.  225;  Rice  v.  Lumley, 
10  Ohio  St.  596.  But  see  Wait  v.  Wait,  4  Comst.  95.  See  Ames  v.  Norman,  4 
Sneed,  683. 

*  Chase  v.  Chase,  6  Gray,  157. 

4  2  Bisli.  ib.  §  714;  Legg  v.  Legg,  8  Mass.  99.  See  Kintzinger's  Estate,  2 
Ashm.  455. 

5  2  Bi.sh.  ib.  §  715,  and  conflicting  cases  compared;  Woods  v.  Simmons,  20 
Mis.  363  ;  2  Kent  Com.  136  et  seq. ;  supra,  ch.  5. 

6  2  Bish.  Mar.  &  Div.  5th  ed.  §  725;  Altemus'  Case,  1  Ashm.  49.  See  2 
Bish.  ib.  §  717 ;  West  Cambridge  v.  Lexington,  1  Pick.  506 ;  Buffaloe  v.  White- 
deer,  3  Harr.  (Pa.)  182;  Babcock  v.  Smith,  22  Pick.  61 ;  Blaker  v.  Cooper,  7  S. 
&  R.  500;  Miller  v.  Miller,  1  Sandf.  Ch.  103;  Clarke  v.  Lott,  11  111.  105.  See 
ch.  "  Marriage  Settlements,"  supra. 

[324] 


SEPARATION  AND  DIVORCE.  *  301 

lowed  to  live  separate.  Here  we  must  consult  the  phraseol- 
ogy of  local  statutes  with  especial  care,  in  order  to  determine 
the  respective  rights  and  duties  of  the  divorced  parties.  Thus 
the  consequence  of  judicial  separation  under  the  present  di- 
vorce acts  of  England,  is  to  give  to  the  wife,  so  long  as  sepa- 
ration lasts,  all  property  of  every  description  which  she  may 
acquire,  or  which  may  come  to  or  devolve  upon  her,  including 
estates  in  remainder  or  reversion  ;  and  such  property  may  he 
disposed  of  by  her  in  all  respects  as  if  she  were  a  feme  sole  ; 
and  if  she  dies  intestate  it  goes  as  if  her  husband  had  then 
been  dead.^ 

In  this  country,  independently  of  statutory  aid,  the  prop- 
erty rights  of  the  jDarties  divorced  from  bed  and  board  remain 
in  general  unchanged.  For  this  divorce  is  only  a  legal  sepa- 
ration, terminable  at  the  will  of  the  parties ;  the  marriage 
continuing  in  regard  to  every  thing  not  necessarily  with- 
drawn from  its  operation  by  the  divorce. ^  Thus,  the  husband 
still  inherits  from  the  wife  and  the  wife  from  the  husband ; 
the  one  takes  his  curtesy,  the  other  her  dower  ;  and  even  the 
right  of  reducing  the  wife's  chases  in  action  into  possession 
still  remains  to  the  guilty  husband.^  But  chancery,  by  virtue 
of  its  jurisdiction  in  awarding  the  wife  her  equity  to  a 
settlement,  may,  and  *  doubtless  will  keep  the  property  *  302 
from  his  grasp,  and  do  to  both  what  justice  demands.* 
The  recent  statutory  changes  affect  this  whole  subject  in 
most  American  States,  eitlier  directly  or  by  construction,  so 
completely,  that  it  is  useless  to  follow  this  branch  of  our  topic 
further. 

The  recent  English  statutes  give  the  wife  upon  sentence  of 
judicial  separation  the  capacity  to  sue  and  be  sued  on  some- 
what the  same  footing  as  a,  feme  sole.  The  rule  in  the  United 
States  is  not  uniform ;  but  the  tendency  is  clearly  in  the  same 


1  Stats.  20  &  21  Vict.  c.  85,  §  25;  21  &  22  Vict.  c.  108,  §  8.     See  Romilly, 
M.  R.,  In  re  Insole,  L.  R.  1  Eq.  470. 

2  Dean  i-.  Riclimond,  5  Pick.  461  ;  2  Bish.  Mar.  &  Div.  5th  ed.  §  72G  et  spq. 

3  Clark  V.  Clark,  6  Watts  &  S.  85 ;  Krijjer  v.  Day,  2  Pick.  316 ;  Smodt  v. 
Lecatt,  1  Stew.  590 ;  Arnes  i-.  Chew,  5  Met.  320. 

*  Holmes  v.  Holmes,  4  Barb.  295  ;  supra,  ch.  6. 

[325] 


*  302  HUSBAND   AND  WIFE. 

direction. 1  On  principle,  the  husband's  right  to  administer 
on  his  wife's  estate  would  seem  not  to  be  forfeited  by  his 
divorce  from  bed  and  board.  Nor  the  wife's  on  her  husband's 
estate.  But  it  should  be  remembered  that  the  wife's  claim 
to  administer,  unlike  the  husband's,  is  never  superior,  but  only 
equal  to,  that  of  the  next  of  kin.  So,  too,  in  the  case  of  both 
husband  and  wife,  divorce  from  bed  and  board  maybe  thought 
a  good  reason  why  the  court  should  refuse  to  issue  letters  of 
administration  to  the  guilty  party,  where  others  are  interested 
in  the  estate,  and  the  judge  has  discretion  in  the  matter  of 
appointment.^ 

The  mutual  rights  of  a  married  pair,  pending  divorce  pro- 
ceedings, sometimes  receive  attention  in  the  courts :  as,  for 
instance,  where  a  wife  receives  injuries  from  a  third  person 
while  living  apart  from  her  husband,  and  afterwards  obtains 
a  divorce.^  Agreements  made  between  husband  and  wife 
while  their  divorce  suit  is  in  progress,  are  jealously  scruti- 
nized ;  and  their  contract  for  the  payment  of  money  after 
divorce  can  hardly  be  deemed  otherwise  than  contrary  to 
public  policy  and  good  morals.* 

1  See  2  Bisli.  Mar.  &  Div.  5th  ed  §  737,  and  eases  cited;  Lefevres  v.  Mur- 
dock,  Wright,  205;  Clark  v.  Clark,  6  Watts  &  S.  85. 

'^  See  2  Bish.  Mar.  &  Div.  5tli  ed.  §  739 :  Clark  v.  Clark,  6  Watts  &  S.  85. 

3  Peru  I'.  French',  55  111.  317. 

*  Muckenburg  v.  Holler,  29  Ind.  139  ;  Stoutenbnrg  v.  Lybrand,  13  Ohio  St. 
228.  And  see  2  Bish.  jMar.  &  Div.  5th  ed.  §  239.  In  matters  relating  to  mar- 
riage and  divorce,  the  writer  acknowledges  his  indebtedness  to  the  justly  valued 
treatise  of  Mr.  Bishop.  Yet  he  confesses  his  inability  to  follow  those  who  argue 
that  lax  divorce  laws  will  mend  lax  morals ;  not  that  either  strict  or  lax  divorce 
laws  can  fully  subdue  crime  ;  but  because  history  teaches  that  loose  laws  rather 
stimulate  than  check  marital  infidelity  ;  while  it  is  found  otherwise  with  coun- 
tries where  stricter  laws  have  prevailed.  To  say  tliat  crime  causes  the  divorce, 
not  divorce  the  crime,  is  illogical  ;  the  one  acts  upon  the  other  in  any  com- 
munity. As  one's  familiarity  with  death  tends  to  make  him  rather  reckless 
than  serious,  ferocious  than  compassionate ;  and  as  contact  with  criminal  courts 
almost  inevitably  corrupts  the  young;  so  the  influence  of  divorces,  when  of  com- 
mon occurrence,  is  to  deteriorate  the  national  character.  When  parties  united 
in  tlie  solemn  responsibilities  of  marriage  can  coolly  discuss  and  arrange  the 
preliminaries  of  final  dissolution,  and  haste  to  obtain  judicial  relief,  for  the  pur- 
pose of  forming  a  new  union,  as  is  sometimes  done  in  our  land,  they  are  hardly 
fitted  to  discharge  nature's  highest  obligations  to  one  another;  certainly  they 
cannot  do  justice  to  their  children  nor  to  society.  Thus  may  marriage  lose 
half  its  significance  by  parting  with  all  of  its  sanctity. 

[326] 


LEGITIMATE   CHILDREN  IN   GENERAL.  ♦  303 


*PART   III.  .  *303 

PARENT    AND    CHILD. 


CHAPTER   I. 

OP   LEGITIMATE   CHILDREN   IN   GENERAL. 

The  second  of  the  domestic  relations  is  that  of  parent  and 
chikl ;  a  relation  which  results  from  marriage,  and  is,  as 
Blackstone  terras  it,  the  most  universal  relation  in  nature.^ 
Both  natural  and  politic  law,  morality  and  the  precepts  of 
revealed  religion  alike,  demand  the  preservation  of  this  rela- 
tion in  its  full  strength  and  purity.  In  the  first  period  of 
their'  existence,  children  are  a  common  object  of  affection  to 
the  parents,  and  draw  closer  the  ties  of  their  mutual  affection ; 
then  comes  the  education  of  the  child,  in  which  the  parents 
have  a  common  care,  which  further  identifies  their  sympathies 
and  objects  ;  the  brothers  and  sisters  of  the  child,  when  they 
come,  bring  with  them  new  bonds'  of  affection,  new  sympa- 
thies, new  common  objects  ;  and  the  habits  of  a  family  take 
the  place  of  the  wishes  of  an  individual.  Thus  do  cliildren 
give  rise  to  affections  which  still  further  tend  to  bind  together 
the  community  by  links  of  iron.^ 

Children  are  divided  into  two  classes,  legitimate  and  ille- 
gitimate. The  law  prescribes  different  rights  and  duties  for 
these  classes.^  It  becomes  proper,  then,  to  consider  them  in 
order.  First.,  then,  as  to  legitimate  children,  to  which 
topic  alone  the  *  relation  of  parent  and  child  in  strict-  *  304 
ness  applies  ;  this  will  occupy  several  chapters. 

1  1  Bl.  Corn.  447. 

2  I  Wliewell  Elements  of  Morality,  100;  2  Kent  Com.  189. 

3  1  Bl.  Com.  447. 

[  ^^'   J 


*  304  PARENT   AND   CHILD. 

A  legitimate  child  is  one  who  is  born  in  lawful  wedlock  or 
is  properly  brought  within  the  influence  of  a  valid  marriage 
by  reason  of  the  time  of  birth.  Legitimacy,  as  the  word  im- 
ports, will  require  that  the  child  be  born  in  a  manner  approved 
of  by  the  law.  If  he  is  begotten  during  marriage  and  born 
afterwards,  it  is  enough.^ 

The  maxim  of  the  civil  law  is  Pater  est  quetn  nuptice  demon- 
strant ;  a  rule  frequently  cited  with  approval  by  common-law 
authorities,  though,  as  we  shall  soon  see,  differently  applied 
in  some  respects.^  A  distinguished  Scotch  jurist  pronounces 
this  "  a  plain  and  sensible  maxim,  which  is  the  corner-stone, 
the  very  foundation,  on  which  rests  the  whole  fabric  of 
human  society,"  ^  Boulleuois,  a  civil-law  writer,  likewise 
commends  it  as  "  a  maxim  recognized  by  all  nations,  which  is 
the  peace  and  tranquillity  of  States  and  families."  *  This 
maxim  implies  that  it  is  always  sufficient  for  a  child  to  show 
that  he  is  born  during  the  marriage.  The  law  draws  from 
this  circumstance  the  necessary  presumption  that  he  is  legit- 
imate. 

Strong,  however,  as  this  presumption  may  be,  it  is  not  con- 
clusive at  law.  For  there  may  be  other  circumstances :  such 
as  long-continued  separation  of  the  parents  ;  the  impotence  of 
the  father ;  also,  if  the  offspring  be  |)osthumous,  the  length  of 
period  which  has  elapsed  since  the  father's  death.  Such  cir- 
cumstances might  render  it  physically  and  morally  impossible 
that  the  child  was  born  and  begotten  in  lawful  wedlock. 
The  civil  law,  therefore,  admitted  four  exceptions  to  the 
general  maxim  :  first,  the  absolute  and  permanent  impotence 
of  the  husband  ;  second,  his  accidental  impotence  or 
*  305  bodily  disability ;  third,  his  absence  *  from  his  wife 
during  that  period  of  time  in  which,  to  have  been  the 
father  of  the  child,  he  must  have  had  sexual  intercourse  Avith 
her  ;    fourth,  the   intervention   of  sickness,  vel  alia  causa.^ 

1  1  Bl.  Com.  447  ;  Fraser  Parent  &  Child,  1 ;  1  Burge  Col.  &  For.  Laws,  59. 

2  1  Bl.  Com.  ib.  ;  Stair  III.  3,  42 ;  '2  Kent  Com.  212,  n. ;  Fraser  Parent  &  Cliild, 
1,  2,  and  authorities  cited  ;  1  Burge  Col.  &  For.  Laws,  59. 

2  Ld.  Pres.  Blair,  in  Routledge  v.  Carruthers,  19  May,  1812,  cited  by  Fraser, 
supra. 

*  Boullenois  Traite  des  Status,  tome  1,  p.  62,  also  cited  by  Fraser,  supra. 
5  Dig.  lib.  1,  tit.  6,  1.  G  ;  1  Burge  Col.  &  For.  Laws,  60. 

[  328  ] 


LEGITIMATE   CHILDREN   IN   GENERAL.  ♦305 

These  concluding  words  admit  the  classification  to  be  imper- 
fect. The  common-law  rule,  which  subsisted  from  the  time 
ot'  the  Year  Books  down  to  the  early  part  of  the  last  century, 
declared  the  issue  of  every  married  woman  to  be  legitimate, 
except  in  the  two  special  cases  of  the  impotency  of  the  hus- 
band and  his  absence  from  the  realm. ^  But  in  Pendrell  v. 
Pendrell  the  absurd  doctrine  of  making  legitimacy  rest  con- 
clusively upon  the  fact  of  the  husband  being  infi-a  quatuor 
maria,  was  exploded.^  Some  Scotch  jurists  resolve  the 
grounds  upon  which  the  presumption  of  legitimacy  may  be 
overthrown  into  two :  first,  that  the  husband  could  not  have 
had  sexual  intercourse  with  his  Avife  by  reason  of  his  impo- 
tency ;  and  second,  that  having  the  power,  he  had  in  fact  no 
sexual  intercourse  with  her  at  the  time  of  the  conception.^ 
This  seems  to  mean,  first,  that  the  husband  physically  could 
not ;  second,  that  he  actually  did  not ;  but  does  not  the 
second  exception  swallow  the  first? 

Perhaps  the  safer  course  is  to  abandon  all  attempts  to  clas- 
sify ;  and  to  hold,  with  Chancellor  Kent,  that  the  question  of 
the  legitimacy  or  illegitimacy  of  the  child  of  a  married  woman 
is  one  of  fact,  resting  on  decided  j)roof  as  to  the  non-access  of 
the  husband,  and  that  these  facts  must  generally  be  left  to  a 
jury  for  determination.* 

From  the  peculiarities  attending  the  case  of  access  or  non- 
access,  legitimacy  or  illegitimacy,  great  indulgence  is  to  be 
shown  by  the  courts.  Said  Lord  Erskine :  "  The  law  of 
England  has  been  more  scrupulous  upon  the  subject  of  legiti- 
macy than  any  other,  to  the  extent  even  of  disturbing 
the  rules  of  *  reason."^  Still  later  was  it  asserted  in  *  306 
English  chancery  that  the  ancient  policy  of  the  law 
remained  unaltered ;  and  that  a  child  born  of  a  married 
woman  was  to  be  presumed  to  be  the  child  of  the  husband, 

>  2  Kent  Cora.  210  ;  Co.  Litt.  244  a  ;  1  Roll.  Abr.  358. 

2  Stra.  Rep.  925;  2  Kent  Com.  211,  and  cases  cited;  Shelley  v. (180G), 

13  Ves.  56. 

•*  Eraser  Parent  &  Child,  4. 

*  2  Kent  Com.  211  ;  3  P.  AVms.  275,  27G  ;  Ilarg.  n.  193  to  Co.  Litt.  lib.  2; 
Rex  !'.  Luffe,  8  East,  193.  And  to  the  same  effect,  see  Blackburn  i-.  Crawfords, 
3  Wall.  175. 

5  Shelley  v. ,  13  Ves.  56. 

[329] 


*  306  PARENT   AND   CHILD. 

unless  there  was  evidence,  beyond  all  doubt,  that  the  hus- 
band could  not  be  the  father.^  And  it  is  at  this  day  admitted 
that  the  presumption  thus  established  by  law  is  not  to  be 
rebutted  by  circumstances  which  only  create  doubt  and  sus- 
picion ;  but  that  the  evidence  against  it  ought  to  be  strong, 
distinct,  satisfactory,  and  conclusive.^ 

So  far,  indeed,  is  legitimacy  favored  at  law,  that  neither 
husband  nor  wife  can  be  a  witness  to  prove  access  or  non- 
access.  This  is  clearly  established  in  England  ;  ^  and  it  is 
understood  to  be  the  law  likewise  in  this  country,  though  the 
decided  cases  seem  to  turn  upon  the  admissibility  of  the  wife's 
testimony.*  Such  evidence  is  treated  as  contra  honos  mores. 
Yet  the  wife  is  an  admissible  witness  to  prove  her  own  adul- 
tery, and  in  qiiestions  of  pedigree  ;  and  husband  and  wife 
may  prove  facts,  such  as  marriage  and  date  of  the  child's 
birth  ;  these  may  be  conclusive  as  to  illegitimacy.^  Much 
testimony,  extremely  delicate,  is  also  taken  in  bastardy  and 
divorce  proceedings.  When,  therefore,  the  courts  shut  their 
eyes  so  tightly  against  this  proof  of  access  or  non-access,  per- 
haps it  is  not  because  they  are  shocked,  but  le'st  they  should 
see  illegitimacy  established. 

To  carry  the  presumption  of  legitimacy  so  far  as  to  dis- 
turb the  rules  of  reason  is  unjust ;  for  no  man  should  be  sad- 
dled with  the  obligations  of  children  which  clearly  do  not 
belong  to  him.  And  the  rule  of  evidence  in  the  Eng- 
*  307  lish  courts  has  been  *  severely  and  justly  criticised,  not 
without  some  good  results.^  The  decision  of  the  House 
of  Lords,  in  the  celebrated  Banbury  Peerage  case,  proceeded 
upon  the  reasonable  assumption  that  moral  as  well  as  physi- 

i  Head  v.  Head,  1  Sim.  &  Stu.  150  (1823)  ;  Banbury  Peerage  Case,  ib.  153  ; 
Pendrell  v.  Pendrell,  2  Stra.  925. 

^  Hargrave  v.  Hargrave,  9  Beav.  552;  Archley.  v.  Sprigg,  33  L.  J.  Ch.  345 ; 
Plowes  V.  Bossey,  8  Jur.  x.  s.  352  ;  10  W.  R.  332. 

3  Rex  V.  Inhabitants  of  Sourton,  5  Ad.  &  El.  188  ;  Patchett  v.  Holgate,  3  E. 
L.  &  Eq.  100 ;  15  Jur.  308  ;  In  re  Rideout's  Trusts,  L.  R.  10  Eq.  41. 

4  2  Stark.  Evid.  404  ;  1  Greenl  Evid.  §  344  ;  Phillips  v.  Allen,  2  Allen,  453 ; 
People  V.  Overseers,  15  Barb.  286;  Parker  v.  Way,  15  N.  H.  45;  Dennison 
V.  Page,  29  Penn.  St.  420. 

5  See  1  Greenl.  Evid.  §  343,  344;  Caujolle  v.  Ferrle',  23  N.  Y.  90.  And  see 
Sale  V.  Crutchficid,  8  Bush,  636  ;  Dean  v.  State,  29  Ind.  483. 

6  2  Kent  Com.  211,  n. ;  Eraser  Parent  &  Child,  7. 

[330] 


LEGITIMATE   CHILDREN  IN   GENERAL.  *  307 

cal  impossibilities  may  affect  the  rule  of  legitimacy.  Here 
husband  and  wife  occupied  'the  same  house  at  the  very 
time  the  child  must  have  been  begotten,  and  no  case  of 
impotency  Avas  made  out,  and  yet  that  child  was  held  not 
to  be  the  child  of  the  husband  ;  for  the  testimony  as  to  a 
moral  impossibility  was  sufficiently  strong  notwithstanding.^ 
This  case  was  confirmed  by  another,  where  husband  and 
wife  had  voluntarily  separated,  but  the  husband  resided 
at  a  distance  of  only  fifteen  miles,  and  sometimes  visited 
his  wife ;  and  the  wife  was  delivered  of  a  child,  which 
was  pronounced  a  bastard,  from  evidence  of  the  conduct  of 
the  wife  and  her  paramour.  Here  it  Avas  said,  "  The  case, 
therefore,  comes  back  to  the  question  of  fact."  ^  Impotency 
of  the  husband,  and  his  absence  from  the  realm,  suggest  then 
but  two  classes  of  cases,  and  those  not  the  only  ones,  where 
children  may  now  be  pronounced  bastards.  "  I  apprehend," 
said  Lord  Langdale,  "  that  evidence  of  every  kind,  direct  or 
presumptive,  may  be  adduced,  for  the  purpose  of  showing  the 
absence  of  sexual  intercourse  which,  in  cases  where  there  has 
been  some  society,  intercourse,  or  access,  has  been  called 
non-generating  access.  We  have,  therefore,  to  attend  to  the 
conduct  and  the  feelings,  as  evidenced  by  the  conduct  of  the 
l^arties  towards  each  other  and  the  offspring,  and  even  to 
the  declarations  accompanying  acts,  which  are  properly  evi- 
dence. Such  circumstances  are  of  no  avail  against  proper 
evidence  of  generating  access  ;  but  they  may  have  weight, 
when  the  effect  of  that  evidence  is  doubtful.  If  the  weight 
is  not  such  as  to  convince  the  minds  of  those  who 
*  have  to  determine  the  matter,  the  effect  may  only  *  308 
tend  to  shake,  without  removing,  the  presumption  of 
legitimacy,  which  in  such  a  case  must  prevail."  ^ 

In  this  country,  cases  have  not  unfrequently  arisen  which 
involve  the  legitimacy  of  offspring ;  and  the  more  reasonable 

1  1  Sim.  &  Stu.  153.  See  Nicolas  on  Adulterine  Bastardy,  181,  a  volume 
written  to  show  that  this  case  overturns  the  old  law  of  England. 

'^  Morris  v.  Davics,  5  01.  &  Fin.  463.  And  see  Barony  of  Saye  &  Sele,  1  CI. 
&Fin.  N.  s.  507;  Sibbett  v.  Ainsley,  3  L.  T.  n.  s.  583,  Q.  B. ;  Eraser  Parent 
&  Cliikl,  8 ;  Kin-  v.  Liiffe,  8  East,  l'.)3  ;  also,  Hitchins  v.  Eardicy,  L.  R.  2  P.  &  D. 
218,  as  to  admitting  declarations  of  the  person  whose  lcgitiniac\'  is  at  issue. 

*  llargrave  v.  Hargrave,  9  Beav.  552. 

[331] 


*308  PARENT   AND   CHILD. 

doctrine  favors  legitimacy  to  about  the  same  extent  as  the 
later  English  decisions.^  The  presumption  of  legitimacy  is 
strongly  carried,  as  the  cases  below  cited  indicate  ;  though 
not  so  far  as  to  exclude  proof  of  non-access  of  the  husband, 
or  such  other  fact  as  might  rebut  this  presumption,  and  show 
that  the  child  of  a  married  woman  was  in  reality  a  bastard.^ 

In  respect  of  the  legitimation  of  offspring  by  the  subse- 
quent marriage  of  their  parents,  the  civil  and  common  law 
systems  widely  differ.  By  the  ci^dl  and  canon  laws,  two 
persons  who  had  a  child  as  the  fruit  of  their  illicit  intercourse, 
might  afterwards  marry,  and  thus  place  their  child  to  all  in- 
tents and  purposes  on  the  same  footing  as  their  subsequent 
offspring,  born  in  lawful  wedlock.^  But  the  common  law, 
though  not  so  strict  as  to  require  that  the  child  should  be 
begotten  of  the  marriage,  rendered  it  indispensable  that  the 
birth  should  be  after  the  ceremony.*  Let  us  notice  this  point 
of  difference  at  some  length. 

It  appears  that  the  law  of  legitimation  per  suhsequens  matri- 
monium  is  of  Roman  origin  ;  introduced  and  promulgated  by 
the  first  Christian  Emperor,  Constantine,  as  history  alleges, 
at  the  instigation  of  the  clergy.  This  was  an  innovation  upon 
the  earlier  Roman  system  ;  and  the  object  of  its  introduction 
was  to  put  down  that  matrimonial  concubinage  which  had 

1  Patterson  ;;.  Gaines,  6  How.  (U.  S.)  582  ;  2  Kent  Com.  211,  and  cases  cited  ; 
Hemmenway  u.  Towner,  1  Allen,  209;  Van  Aernani  ?;.  Van  Aernam,  1  Barb. 
Ch.  375 ;  Wright  v.  Hicks,  15  Geo.  160. 

2  See  Van  Aernam  v.  Van  Aernam,  1  Barb.  Ch.  375 ;  Kleinert  v.  Ehlers,  38 
Penn.  St.  439;  Phillips  v.  Allen,  2  Allen,  453;  Hemmenway  v.  Towner,  1 
Allen,  209  ;  State  v.  Herman,  13  Ire.  502;  Tate  v  Pene,  19  Martin,  548  ;  Cannon 
V.  Cannon,  7  Humph.  410 ;  State  v.  Slmmpert,  1  S.  C.  n.  s.  85  ;  Strode  v.  Ma- 
gowan,  2  Bush,  621 ;  Blackburn  v.  Crawfords,  3  Wall.  175.  Collateral  proof  of 
legitimacy  is  not  to  be  favored.  See  Kearney  v.  Denn,  15  Wall.  51.  But  under 
suitable  circumstances  the  grant  of  letters  of  administration  may  be  conclusive  in 
other  courts.     Caujolle  i-.  Ferrie,  13  Wall.  465. 

Formerly  in  portions  of  the  United  States  slave  marriages  were  deemed  un- 
lawful, and  the  offspring  illegitimate.  Timmins  v.  Lacy,  30  Tex.  115.  But 
slavery  no  longer  e.xists,  and  the  tendency  of  our  legislation  is  now  to  uphold  as 
far  as  possible  former  marriages  of  colored  persons,  and  the  legitimacy  of  their 
oflTspring.     See  White  v.  Ross,  40  Geo.  339  ;  Allen  v.  Allen,  8  Bush,  490. 

3  2  Kent  Com.  208;  1  Burge  Col.  &  For.  Laws,  92. 
*  1  Bl.  Com.  454. 

[  332] 


LEGITIMATE   CHILDREN  IN   GENERAL.  *  308 

become  so  universal  in  the  empire.^  Justinian  afterwards 
made  this  law  perpetual.^  Its  first  appearance  in  the 
canon  law  is  found  in  two  rescripts  *  of  Pope  Alexan-  *  309 
der  III.,  preserved  in  the  Decretals  of  Gregory,  and 
issued  in  1180  and  1172.^  These  extended  the  benefits  of 
the  marriage  to  the  offspring  of  carnal  love,  and  not  merely 
to  the  issue  of  systematic  concubinage.  This  law  of  legiti- 
mation was  introduced  into  Scotland  within  the  range  of 
authentic  history,'*  It  is  also  admitted,  with  different  modi- 
fications, into  the  codes  of  France,  Spain,  Germany,  and  most 
other  countries  in  Euroj^e.^ 

The  principle  to  which  the  law  of  legitimation  per  suhse- 
quens  matrimonium  is  to  be  referred,  has  been  a  subject  of 
controversy.  The  canonists  based  the  law  not  on  general 
views  of  expediency  and  justice,  but  upon  a  fiction  which 
they  adopted  in  order  to  reconcile  the  new  law  with  estab- 
lished rules ;  for,  assuming  that,  as  a  general  rule,  children 
are  not  legitimate  unless  born  in  lawful  wedlock,  they  de- 
clared that,  by  a  fiction  of  law,  the  parents  were  married  when 
the  child  was  born.  Such  reasoning,  by  no  means  uncommon 
in  days  when  the  wise  saw  more  clearly  what  was  right,  than 
why  it  was  so,  has  not  stood  the  test  of  modern  logic ;  and 
the  Scotch  courts  have  placed  the  rule  once  more  where  its 
imperial  founders  left  it ;  namely,  on  the  ground  of  general 
policy  and  justice.  "  Legitimation  is  thought  to  be  recom- 
mended by  these  considerations  of  equity  and  justice,  that  it 
tends  to  encourage  what  is  at  first  irregular  and  injurious  to 
society,  into  the  honorable  relation  of  lawful  matrimony  ;  and 
that  it  prevents  those  unseemlv  disorders  in  families  which 
are  produced  where  the  elder-born  children  of  the  same  par- 
ents are  left  under  the  stain  of  bastardy,  and  the  younger 
enjoy  the  status  of  legitimacy."  ^ 

1  "  Licita  eonsuetudo  semimatrimonium,"  Cod.  lib.  6,  tit.  57. 

2  Taylor's  Civil  Law,  272 ;  Eraser  Parent  &  Child,  32 ;  1  Burge  Col.  &  For. 
Laws,  92,  03. 

3  Deer.  IV.  17,  1 ;  IV.  17,  G,  cited  in  Eraser  Parent  &  Child,  .3.3.  "  Tanta  est 
enim  vis  sacramenti  (matrimonii)  ut  qui  antea  sunt  geniti  post  contractum  matri- 
moniiun  habeantur  legitimi." 

*  Eraser  Parent  &  Child,  32,  33.  »  1  Burge  Col.  &  Eor.  Laws,  101. 

*  Eraser  Parent  &  Child,  33;  Munro  v.  Munro,  1  Rob.  II.  L.  Scotch  App.  492. 

[333] 


*  309  PARENT   AND   CHILD. 

This  doctrine  of  the  civil  law  has  found  great  favor  in  the 
United  States.     It  has  prevailed  for  many  years  in  the 

*  310    States    *  of   Vermont,    Maryland,    Virginia,    Georgia, 

Alabama,  Mississippi,  Louisiana,  Kentucky,  Missouri, 
Indiana,  and  Ohio.^  So  in  Massachusetts,  bastards  are  to  be 
considered  legitimate  after  the  intermarriage  of  their  parents 
and  recognition  by  the  father.^  And  similar  statutes  are  to 
be  found  in  Maine,  Pennsylvania,  Vermont,  Indiana,  and 
elsewhere.^ 

On  the  other  hand,  the  English  law  has  very  strongly  op- 
posed the  whole  doctrine  of  legitimation  jjer  subsequens  mat- 
rimonium.  Even  so  far  back  as  the  reign  of  Henry  III.  is 
found  a  memorable  instance  w*here  the  peers  refused  to  change 
the  law  in  this  respect,  when  urged  to  do  so  by  the  English 
bishops ;  declaring  with  one  voice,  quod  nolunt  leges  Anglice 
mutare,  quce  hue  usque  usitatce  sunt  et  ajjpr^ohatce.^  Jealousy 
of  canonical  influence  may  partially  account  for  this  conduct, 
if  not  prejudice  against  the  civil  law  generally.  Certain  it  is 
that  most  Enghsh  jurists  have  ever  since  stubbornly  main- 
tained the  superiority  of  their  own  maxims,  which  place  the 
immutability  of  the  marriage  relation  above  all  the  tender 
promptings  of  humanity  towards  innocent  sufferers.  Even 
Blackstone  vigorously  assails  the  civil-law  doctrine,  urging 
against  it  several  rather  artificial  objections,  in  the  apparent 
belief  that  legal  consistency  is  better  than  natural  justice.^ 
But  on  the  other  hand,  Selden  mentions  that  the  children  of 
John  of  Gaunt,  Duke  of  Lancaster,  were  legitimated  by  an 

1  Griffith's  Law  Reg.  passim ;  1  Burge  Col.  &  For.  Laws,  101. 

'i  Mass.  Gen.  Sts.  1860,  c.  91. 

s  Maine  Laws,  1852,  c.  266 ;  Penn.  Laws,  1857,  May  14 ;  Vermont  R.  S. 
1863,  c.  56 ;  Ind.  R.  S.  1862,  c.  46.  And  see  Graham  v.  Bennett,  2  Cal.  503 ; 
Starr  v.  Peek,  1  Hill  (N.  Y.),  270;  Sleigh  v.  Strider,  5  Call,  439;  Dannelli  v. 
Dannelli,  4  Bush,  51 ;  Adams  v.  Adams,  36  Geo.  236 ;  Morgan  v.  Perry,  51  N. 
H.  559 ;  Brown  v.  Belmarde,  4  Kans.  41.  In  some  States  still  another  mode  of 
legitimation,  for  inheritance,  if  not  for  all  other  purposes,  is  permitted  by  law  ; 
namely,  by  the  father's  formal  declaration,  properly  attested,  which  is  filed  in 
court  and  recorded.  Tliis  might  be  called  legitimation  by  public  or  judicial 
record.  See  Lingen  v.  Lingen,  45  Ala.  410,  414 ;  Pina  v.  Peck,  31  Cal.  3-59. 
Recognition  of  a  less  formal  character  suffices  for  purposes  of  inheritance  in  Iowa. 
Crane  v.  Crane,  31  Iowa,  296. 

4  Stat,  of  Merton,  20  Henry  3,  c.  9 ;  2  Kent  Com.  209  ;  1  Bl.  Com.  456. 
1  Bl.  Com.  4.54,  455. 

[  334  ] 


LEGITIMATE   CHILDREN  IN   GENERAL.  *310 

act  of  Parliament,  in  the  reign  of  Richard  II.,  founded  on 
some  obscure  common-law  custom.^ 

Upon  such  principles  it  has  been  decided  by  the  House  of 
Lords,  that  where  a  marriage  is  in  its  inception  unlaw- 
ful, being  *  at  a  time  when  the  woman's  first  husband  *  311 
must  have  been  alive,  children  born  even  after  the  time 
when  it  was  presumed  that  the  first  husband  had  died,  must 
be  pronounced  illegitimate  ;  the  mere  continuance  of  the 
cohabitation  after  that  event  being  insufiicient  without  cele- 
bration to  change  the  character  of  the  connection.^  Nor  will 
an  absolute  presumption  of  law  be  raised  as  to  the  contin- 
uance of  life  to  support  such  legitimacy ;  for  in  every  instance 
the  circumstances  of  the  case  must  be  considered.-^  And  so 
strict  is  the  rule,  that  where  a  person,  born  a  bastard,  becomes, 
by  the  subsequent  marriage  of  his  parents,  legitimate  accord- 
ing to  the  laws  of  the  country  in  which  he  was  born,  he  is 
still  a  bastard,  so  far  as  regards  the  inheritance  of  lands  in 
England.'^ 

As  to  the  status  of  children  born  after  divorce,  partial  or 
complete,  little  can  be  stated  from  the  books ;  for  such  di- 
vorces hardly  existed  at  the  common  law.^  They  are  probably 
illegitimate  prima  facie,  if  born  within  an  unreasonable  time 
after  separation.*^ 

The  issue  of  marriages  rendered  null  and  void  are  on  gen- 
eral principles  necessarily  illegitimate.  Opposed  to  this  is  the 
civil-law  doctrine  of  putative  marriages,  first  introduced  into 
the  canon  law  by  Pope  Innocent  III.  ;  which  upholds  the 
legitimacy  of  the  children  in  cases  where  the  parties,  or  either 
of  them,  bona  fide  believing  that  they  could  marry,  had  en- 

1  Selden  on  Elcta,  ch.  9,  §  2.     And  see  Barrington,  p.  38 ;  2  Kent  Com.  209. 

^  Lapsley  v.  Grierson  (1848),  1  CI.  &  Fin.  n.  s.  498;  Cunningham  v.  Cun- 
ningham, 2  Dow,  482. 

•*  Lapsley  v.  Grierson,  lb.,  explaining  Rex  v.  Twyning,  2  B.  &  A.  386. 

*  Doe  d.  Birtwhistle  v.  Vardill,  G  Bing.  N.  C.  385;  7  CI.  &  Fin.  895.  And 
see  supra,  p.  49;  infra,  p.  313. 

5  See  Hu.sband  &  Wife,  supra,  ch.  17;  2  Bish.  Mar.  &  Div.  uili  ed.  §  559; 
Montgomery  v.  Montgomery,  3  Barb.  Ch.  132. 

«  St.  George  v.  St.  Margaret,  1  Salk.  123  ;  2  Bish.  Mar.  &  Div.  ib.  §  740. 

[33.^] 


*  3  1 1  PARENT  AND   CHILD. 

tered  into  the  contract,  while  there  wds  an  unknown  impedi- 
ment existing.^  This  subject  is  regulated  by  statute  to  a  great 
extent  in  this  countr3%  and  here  again  our  system  conforms  to 
the  civil  rather  than  the  common  law.^ 

*  312        *  Legitimation  by  rescript  of  the  Emperor  appears 

in  the  Institutes  of  Justinian.^  Still  later  did  the  Pope 
assume  the  power  to  grant  the  status  of  legitimacy ;  and  in 
many  of  the  canonical  dispensations  occur  clauses  of  this  sort.* 
The  effect  of  these  high-sounding  clauses  is  now  of  little  con- 
sequence.^ The  English  Parliament,  by  virtue  of  its  tran- 
scendent power,  may  render  a  bastard  legitimate  and  capable 
of  inheriting.*^  This  same  power  has  been  claimed  for  the 
legislatures  of  the  United  States.'^  And  excej^t  so  far  as  leg- 
islative acts  may  come  under  constitutional  restraints  against 
impairing  the  obligation  of  contracts,  there  seems  no  reason 
why  they  should  not  be  uniformly  upheld. 

The  domicile  of  a  child's  origin  is  to  be  determined  by  the 
domicile  of  his  parents ;  or  to  speak  more  strictly,  of  his 
father.  We  speak  at  this  time  only  of  legitimate  children. 
The  domicile  of  origin  remains  until  another  is  lawfully  ac- 
quired. And  since  minors  are  not  sui  juris  they  may  not 
change  their  domicile  during  their  minority ;  hence  they 
retain  the  domicile  of  their  parents  ;  if  the  parents  change 
their  domicile,  that  of  the  infant  children  follows  it ;  and  if 
the  father  dies,  his  last  domicile  is  that  of  the  infant  chil- 
dren.^   The  surviving  mother  may  change  the  domicile  of  her 

1  Eraser  Parent  &  Child,  22  et  seq. ;  1  Purge  Col.  &  For.  Laws,  96. 

'  See  supixi,  p.  25.  And  see  Graham  r.  Bennett,  2  Cal.  503.  Yet  there  is  a 
case,  that  of  Sir  Ralph  Sadlier,  where  Parliament  gave  relief.  See  Nicolas 
Adult.  Bast.  61-63.  Eraser  Parent  &  Child,  24;  Burnett's  History,  book  1, 
ch.  19 ;  Riddell  Peer  &  Cons.  Law,  421. 

3  Nov.  74,  c.  1,  2 ;  and  89,  c.  9. 

<  See  Fraser  Parent  &  Child,  43.  5  lb. 

6  1  Bl.  Com.  459.     And  see  stat.  6  Will.  4,  c.  22. 

7  Beall  V.  Beall,  8  Geo.  210  ;  Vidal  v.  Commajere,  13  La.  Ann.  516.  It  will  be 
presumed  that  a  statute  of  tliis  kind  confers  legitimacy  only  so  far  as  to  give  the 
capacity  to  inherit.     Grubb's  Appeal,  58  Penn.  St.  55. 

8  Story  Confl.  Laws,  §§  45,  46,  and  cases  cited ;  1  Burge  Col.  &  For.  Laws, 
33;  Abington  v.  North  Bridgewater,  23  Pick.  170;  Taylor  v.  Jeter,  33  Geo.  195; 

[336] 


LEGITIMATE   CHILDREN  IN   GENERAL.  *  312 

minor  children,  provided  she  do  so  without  fraudulent  views 
to  the  succession  of  their  estate  ;  though  it  would  appear  that 
she  cannot  change  it  after  her  remarriage.^ 

*  Some  writers  have  said  that  when  the  laws  of  two  *  313 
countries  are  in  conflict,  the  legitimacy  or  illegitimacy 
of  children  is  to  be  determined  by  the  domicile  of  origin.^ 
Others  again  that  it  is  dej)endent  upon  the  lex  loci  of  mar- 
riage.^ Between  these  writers  there  is  no  real  discrepancy ; 
for  in  every  such  case  two  inquiries  are  involved,  the  one 
whether  the  marriage  was  in  itself  lawful,  the  other  whether 
the  child  was  legitimate  by  the  marriage.  Of  the  conflict  of 
laws  regarding  marriage  we  have  already  spoken.*  That  in- 
volving the  status  of  legitimacy  is  now  under  consideration. 

A  conflict  manifestly  arises  between  the  laws  of  domicile  of 
origin  and  subsequent  marriage,  and  the  laws  of  the  actual 
domicile  or  situs  of  property,  where  those  of  the  one  country 
admit  legitimation  i^er  siibsequens  matrimonium^  and  those  of 
the  other  do  not.  As  for  instance,  where  children  are  born, 
and  their  parents  afterwards  intermarry  in  certain  of  the 
United  States,  or  in  Scotland,  and  then  remove  with  their 
children  to  England ;  or  where  such  children  are  deemed  to 
have  acquired  property  rights  in  the  last-named  country. 

On  this  point  there  is  much  diversity  of  opinion.  And  the 
English  courts  have  uniformly  maintained  their  distinctive 
policy  with  considerable  zeal  in  all  doubtful  cases.  Thus 
particularly  was  this  done  in  the  case  of  Birtivhistle  v.  Vardill^ 
where  a  child,  legitimate  to  all  purposes  in  Scotland,  was 
denied  the  full  rights  of  a  lawful  child  in  England.^  Yet  the 
law  of  foreign  countries  as  to  legitimacy  is  so  far  respected  in 

Wharton  Confl.  §  41.  But  see  Ishan  v.  Gibbons,  1  Bradf.  Sur.  70;  Somerville 
V.  Somerville,  5  Vcs.  750. 

'  Potinger  v.  Wightman,  3  Mer.  67  ;  1  Burge  Col.  &  For.  Laws,  39 ;  Brown 
V.  Lynch,  2  Eradf.  Sur.  214 ;  Carlisle  v.  Tuttle,  30  Ala.  613.  And  see  infra, 
412. 

'i  1  Burge  Col.  &  For.  Laws,  111 ;  Fraser  Parent  &  Child,  45. 
,  3  Story  Confl.  Laws,  §  105;  Wharton  Confl.  §§  35,  41. 

*  See  Husband  &  Wife,  eh.  1,  supra. 

«  7  CI.  &  Fin.  895;  4  Jur.  1076;  ib.  5  B.  &  C.  438;  Story  Confl.  Laws,  §  93 
et  seq.,  where  the  doctrine  of  Birtwhistle  v.  Vardill  is  strongly  combated.  See 
Boyes  v.  Bedale,  12  W.  li.  232,  before  Wood,  V.  C. ;  Story  Confl.  Laws,  6th  ed. 
§  93  w,  n.  by  Kedfield.    And  see  Goodman  v.  Goodman,  3  Gif.  643. 

22  [  337  ] 


*  313  PAEENT  AND   CHILD. 

England  that  a  person  illegitimate  by  the  law  of  his  domicile 
of  birth  will  be  held  illegitimate  in  England.^ 

*  314        *  The  doctrine  of  general  writers  is,  that  the  status 

of  legitimacy  or  illegitimacy,  or  the  capacity  to  become 
legitimate  per  subsequens  matrimonium,  is  governed  by  the 
law  of  the  domicile  of  the  child's  origin.^  And,  since  the 
domicile  of  origin  is  that  of  the  father,  the  great  leading  fact 
to  be  ascertained  in  snch  inquiries  will  be  generally  the  dom- 
icile of  the  father.^  A  person  born  before  wedlock,  who  in 
the  country  of  his  birth  is  considered  illegitimate,  will  not  by 
a  subsequent  marriage  of  his  parents  in  another  country,  by 
whose  laws  such  a  marriage  would  make  him  legitimate,  cease 
to  be  illegitimate  in  the  country  of  his  birth.*  On  the  other 
hand,  without  a  subsequent  marriage  of  his  parents,  lawful  by 
the  laws  of  the  land  where  celebrated,  it  is  clear  that  any 
child  must  remain  illegitimate,  whatever  be  the  domicile  of 
his  origin. 

By  adoption  a  qvasi  parental  relation  was  sometimes  con- 
stituted at  the  civil  law.  Adoption  is  the  taking  or  choosing 
of  another's  child  as  one's  own.^  The  adoption  of  children 
is  still  regulated  in  Germany  and  France,  but  is  not  generally 
recognized  in  English  or  American  law.  But  in  Massachu- 
setts it  is  recently  provided  that  under  a  judicial  decree,  ren- 
dered upon  due  investigation,  any  person  may  adopt  as  his 
own  the  child  of  others  ;  and  that  the  child  so  adopted  shall 
be  deemed,  for  the  purposes  of  inheritance  and  all  other  legal 
consequences  and  incidents  of  the  natural  relation  of  parents 
and  children,  the  child  of  the  parents  by  adoj)tion,  the  same 

1  Munro  v.  Saunders,  6  Bligh,  468 ;  cases  cited  in  Birtwhistle  v.  Vardill,  9 
Bligh,  52.  But  a  foreign  legitimation  is  so  far  respected  in  a  late  case  that  a 
succession  tax  was  not  laid  upon  the  child  as  a  stranger  in  blood.  Skottowe  v. 
Young,  L.  R.  11  Eq.  474. 

In  this  country  the  doctrine  of  Birtwhistle  v.  Vardill  is  sometimes  followed 
in  matters  of  inheritance.  Smith  v.  Derr,  34  Penn.  St.  126.  And  this,  notwith- 
standing the  child  was  begotten  in  the  State  where  the  question  of  inlieritance 
afterwards  arose.     Lingen  v.  Lingen,  45  Ala.  410. 

2  1  Burge  Col.  &  For.  Laws,  111.     And  see  Skottowe  v.  Young,  supra. 
8  Eraser  Parent  &  Ciiild,  45. 

♦  Story  Confl.  Laws,  §  106. 

5  Inst.  I.  11,  1;   Bouvier  Law  Diet.  "Adoption." 

[338] 


LEGITIMATE   CHILDREN  IN   GENERAL.  *  314 

as  if  he  had  been  born  to  them  in  lawful  wedlock. ^  In  Louis- 
iana, the  laws  once  authorized  adoption ;  but  this  was  changed 
by  the  code  of  1808.  Yet  adoption  by  special  act  of  the  leg- 
islature is  not  unknown  in  that  State. ^  There  are  other  States 
in  which  adoption  is  now  permitted,  and  the  rights  of  the  pa- 
rent by  adoption  are  treated  substantially  as  those  of  a  natural 
parent.^  But  our  local  legislation  has  sometimes  discounte- 
nanced the  adoption  of  a  stranger  as  co-heir  with  one's  own 
child.4 

1  Mass.  Gen.  Sts.  c.  110.  ^  Vidal  v.  Commajere,  13  La.  Ann.  516. 

s  Rives  V.  Sneetl,  25  Geo.  612;  Lunay  v.  Vantyne,  40  Vt.  501. 
*  Teal  V.  Sevier,  26  Tex.  516. 


[339] 


*  315  PARENT  AND  CHILD. 


*315  *  CHAPTER   II. 

THE    DUTIES    OF    PARENTS. 

Three  leading  duties  of  parents,  as  to  their  legitimate 
children,  are  recognized  at  the  common  law  :  firsts  to  protect ; 
seeo7id,  to  educate ;  thirds  to  maintain  them.  These  duties 
are  all  enjoined  by  positive  law  ;  yet  the  law  of  the  natural 
affections  is  stronger  in  upholding  such  fundamental  obliga- 
tions of  the  parental  state.^ 

First,  as  to  protection  :  that  cover  or  shield  from  evil  and 
injury  which  is  afforded  by  the  parent.  This  duty  the 
stronger  owes  to  the  weaker,  and  especially  does  the  father 
owe  it  to  his  child,  so  long  as  the  latter  remains  comparatively 
helpless.  This  obligation  may  be  shifted  in  time,  as  age  adds 
to  the  strength  of  the  one,  and  the  infirmities  of  the  other. 

It  is  to  the  credit  of  our  civilization  that  the  natural  duty 
of  protection  is  rather  permitted  than  enjoined  by  any  munic- 
ipal laws  ;  nature  in  this  respect  "  working  so  strongly,"  to 
use  the  forcible  words  of  Blackstone,  "  as  to  need  rather  a 
check  than  a  spur."^  The  strongest  illustration  of  protec- 
tion at  the  common  law  which  is  furnished  by  this  earned 
writer, — that  of  a  father  who  revenged  his  son's  injury  by 
going  near  a  mile  and  beating  the  offender  to  death  with  a 
cudgel,  —  though  affording  a  questionable  legal  principle,  as 
he  puts  it,  at  least  shows  what  the  verdicts  of  our  juries  are 
constantly  confirming,  that  the  sympathies  of  human  tribunals 
are  with  him  who  defends  his  own  offspring,  even  when  his 
zeal  outruns  his  discretion.^ 

1  1  Bl.  Com.  447;  2  Kent  Com.  189;  Taylor's  Civil  Law,  383;  Puff.  b.  4, 
ch.  11,  §§  4,  5.  2  1  Bl.  Com.  450. 

5  See  1  Hawk.  P.  C.  83,  cited  in  1  Bl.  Com.  450 ;  and  n.  by  Coleridge,  citing 
Fost.  294,  and  2  Ld.  Rayra.  1498,  in  opposition  to  Blackstoue's  remark. 

[340] 


DUTIES   OF  PARENTS.  *  316 

*  A  parent  may,  by  the  common  law  of  England,  *  316 
maintain  and  uphold  his  children  in  their  lawsuits, 
without  being  guilty  of  the  legal  crime  of  maintaining  quar- 
rels.^ He  may  also  justify  an  assault  and  battery  committed 
in  defence  of  the  persons  of  his  children.^  On  the  other 
hand,  as  we  shall  hereafter  see,  where  he  is  cruel  and  devoid 
of  natural  affection,  his  children  may  be  taken  from  his  per- 
sonal keeping ;  nay,  he  may  be  subject  to  punishment  for  his 
own  misconduct.  The  doctrine  of  parental  protection  seems 
to  have  required  little  or  no  special  judicial  discussion  in 
modern  times. 

Second.  The  second  duty  of  parents  is  that  of  education ; 
a  duty  which  Blackstone  pronounces  to  be  far  the  greatest  of 
all  these  in  importance.^  This  importance  is  enhanced  by 
the  consideration  that  the  usefulness  of  each  new  member  of 
the  human  family  to  society  depends  chiefly  upon  his  char- 
acter, as  developed  by  the  training  he  receives  in  early  life. 
Not  the  increase  of  population,  but  the  increase  of  a  well- 
ordered,  intelligent,  and  honorable  population,  is  to  determine 
the  strength  of  a  State  ;  and,  as  a  civil  writer  observes,  the 
parent  who  suffers  his  child  to  grow  up  like  a  mere  beast,  to 
lead  a  life  useless  to  others  and  shameful  to  himself,  has  con- 
ferred a  very  questionable  benefit  upon  him  by  bringing  him 
into  the  world.'*  Solon  excused  the  children  of  Athens  from 
maintaining  their  parents,  if  they  had  neglected  to  train  them 
up  in  some  art  or  profession.^  So  intimately  is  government 
concerned  in  the  results  of  early  training,  that  it  interferes, 
and  justly  too,  both  to  aid  the  parent  in  giving  his  children  a 
good  education,  and  in  compelling  that  education,  where  the 
parent  himself,  and  not  the  child,  is  delinquent  in  improving 
the  opportunities  offered. 

Questions  of  parental,  and  more  particularly  religious 
education,  arise  often  in  English  law  under  the  will  of  the 

'  2  Inst.  564.  But  a  parent  is  not  bound  to  employ  counsel  to  defend  tlie 
suits  of  his  minor  cliildren.     Hill  v.  Childress,  10  Yerg.  514. 

2  1  Hawk.  P.  C.  131 ;  1  Bl.  Com.  450.     See  infra,  pp.  332,  833. 

'  1  Bl.  Com.  450.  *  Puff.  Law  of  Nations,  b.  6,  ch.  2,  §  12. 

*  Plutarch's  Lives  ;  2  Kent  Com.  195. 

[341] 


*  e316  PARENT   AND   CHILD. 

*  317    father.     It  is  laid  clown  as  the  rule,  that  *  where  one 

has  left  no  direction  in  his  will,  as  to  the  religion  in 
which  his  children  are  to  be  educated,  it  will  be  presumed 
that  his  wishes  were  that  they  shall  be  educated  in  his  own 
religion.^  Further,  that  the  religious  education  of  an  infant 
of  fifteen  will  not  be  changed  unless  the  infant  wishes  it.^ 
But  no  regard  is  paid  to  the  wishes  of  a  child  ten  years  old.^ 
The  father  is  allowed  to  designate  the  plan  of  education  to 
be  followed  with  respect  to  his  children  after  his  death.  And 
while,  as  Lord  Cottenham  has  observed,  he  has  no  power  to 
prescribe  a  particular  religion  to  his  child,  yet  he  has  indi- 
rectly the  power  of  effecting  his  object  by  the  choice  of  a 
guardian.^ 

The  English  courts  of  chancery  have  indeed  exercised  con- 
siderable jurisd  ction  over  the  education  of  minor  wards:  a 
topic  which  very  seldom  engages  the  attention  of  American 
tribunals.  While  the  penal  laws  against  Roman  Catholics 
were  in  full  force  in  England,  it  was  considered  the  duty  of 
the  Court  of  Chancery,  by  analogy  to  the  statute  law,  to  see 
that  all  infants  under  its  control  should  be  brought  up  in  the 
Protestant  religion.^  A  case  is  reported  in  which  Lord  Cow- 
per  ordered  a  Roman  Catholic  girl  to  be  sent  to  a  Protestant 
school,  evidently  with  a  view  to  her  conversion.^  "With  the 
progress  of  religious  toleration  came  a  different  rule  of  prac- 
tice ;  and  it  is  now  a  question  whether,  under  any  circum- 
stances, the  court  would  interfere  with  the  testamentary 
guardian,  and  the  infant's  religion  as  designated  by  the  father ; 
indeed,  according  to  the  latest  decisions,  the  Roman  Catholic 
faith  a;  pears  in  this  respect  as  much  favored  as  the  Protes- 
tant.'    But  schemes  of  education,  in  cases  of  disagreement 

1  In  re  North,  11  Jur.  7,  V.  C.  Bruce ;  IMacphers.  Inf.  555 ;  Campbell  v. 
Mackay,  2  Myl.  &  Cr.  34. 

2  Witty  V.  Marshall,  1  You.  &  C.  N.  C.  68. 

3  Regina  v.  Clarke,  7  El.  &  B.  186.  And  see  Hawksworth  v.  Hawksworth, 
L.  R.  6  Ch.  539. 

*  Talbot  V.  Earl  of  Shrewsbury,  18  L  J.  125;  Macphers.  Inf.  126.  See  also 
Hill  V.  Hill,  8  Jur.  n.  s.  609.     And  see  Eraser  Parent  &  Child,  82. 

5  Macphers.  Inf.  123  ;  Lady  Teynham's  Case,  9  Mod.  40. 

6  Hill  V.  Eilkin,  2  P.  Wms.  5.  And  see  Blake  v.  Leigh,  Ambl.  306 ;  Jac. 
264,  n. ;  In  re  Bishop  Keg.  Lib.  1774,  cited  in  JIacphers.  Inf.  124.    . 

^  Talbot  V.  Earl  of  Shrewsbury,  18  L.  J.  125,  per  Lord  Ch.  Cottenham.   And 

[342] 


DUTIES   OF   PARENTS.  *  317 

among  guardians,  are  still  prescribed  in  chancery.^     So 
the  rights  of  the  guardian  as  *  judge  of  the  place  of   *  318 
his  ward's  education  have  been  sometimes  enforced  in 
equity  against  the  ward's  own  wishes.^ 

Courts  of  chancery,  in  short,  have  jurisdiction  to  superin- 
tend the  education  of  infant  chOdren.  Yet  the  Erglish  cou.  ts 
seem  to  have  acted  rather  for  the  purpose  of  securing  the 
control  of  the  child's  education  to  the  proper  person,  or  up- 
holding the  father's  wishes,  than  to  make  independent  regu- 
lations of  their  own  according  to  the  child's  welfare.  In  this 
respect,  as  well  as  in  enforcing  the  disabilities  of  the  law 
against  Roman  Catholics  and  dissenters,  cliancery  was  mani 
festly  influenced  by  considerations  of  national  policy. 

Should  such  a  subject  come  befo:e  the  courts  of  this  coun- 
try, the}^  might  fairly  take  a  different  course,  more  in  accord- 
ance with-  American  legislation.  Our  municipal  laws  in 
general  provide  for  the  infant's  educational  wants  ;  and  this 
whole  jurisdiction  is  one  of  great  embarrassment  and  respon- 
sibility. We  do  not  find  a  leading  American  case  decided 
with  direct  and  sole  reference  to  the  education  of  young  chil- 
dren.^ But  there  are  several  late  decisions  concerning  the 
right  of  public  school  boards  to  issue  general  regulations  con- 
cerning the  admission,  suspension,  or  dismissal  of  pupils.  And 
in  some  States  the  father  of  a  child  may  apply  for  mandamus 
against  the  board  to  compel  them  to  admit  to  the  pubhc  school 
his  child,  who  has  been  unlawfully  excluded.-^ 

Third.  The  third  parental  duty  is  that  of  maintenance.     It 

see  Regina  v.  Clarke,  7  El.  &  B.  18G ;  Hawks  worth  v.  Ilawksworth,  L.  R. 
6  Ch.  53y. 

1  Campbell  v.  Mackay,  2  Myl.  &  Cr.  34 ;  Macphers.  Inf.  555. 

-  Tremain's  Case,  Stra.  16b;  Hall  v.  Hall,  3  Atk.  721.  In  Tremain's  case, 
an  "  infant "  went  to  Oxford  contrary  to  the  orders  of  his  guardian,  wiio  wished 
him  to  study  at  Cambridge.  The  court  sent  a  messenger  to  carry  him  from 
Oxford  to  Cambridge ;  and  upon  his  repeated  disobedience  there  went  another 
tain  to  carry  him  to  Cambridge,  quam  to  keep  lum  there.  See  Macphers.  Inf. 
121,  141. 

=*  See  2  Story  Eq.  Juris.  §  1342;  Wellesley  v.  AVellesley,  2  Bligli  n.  s.  124. 

*  See  the  topic  of  Custody,  infra;  Jones  v.  Stockett,  2  Bland.  4U',t. 

5  People  V.  Board  of  Education,  18  Mich.  400.  See  further,  Burdick  v.  Bab- 
cock,  31  Iowa,  562 ;  Hodgkius  v.  Rockport,  105  Mass.  475. 

[843] 


*  318  PARENT  AND  CHILD. 

is  a  plain  precept  of  universal  law  that  young  and  tender 
beings  should  be  nurtured  and  brought  up  by  their  parents  ; 
and  this  precept  have  all  nations  enforced.  So  well  secured 
is  the  obligation  of  maintenance  that  it  seldom  requires  to  be 
enforced  by  human  laws.^  Are  we  brought  into  this  world 
to  perish  at  the  threshold  by  suffering  and  starvation  ?  No  : 
but  to  live  and  to  grow.  Some  one,  then,  must  enable  us  to 
do  so  ;  and  upon  whom  more  justly  rests  that  resj^onsibility 
than  upon  those  who  brought  us  into  being?  Hence,  as 
Puffendorf  observes,  the  duty  of  maintenance  is  laid 

*  319    on  the  *  parents,  not  only  by  nature  herself,  but  by 

their  own  proper  act  in  bringing  the  children  into  the 
world.  By  begetting  them,  they  have  entered  into  a  volun- 
tary obligation  to  endeavor,  as  far  as  in  them  lies,  that  the 
life  which  they  have  bestowed  shall  be  supported  and  pre- 
served.2 

Maintenance  is  that  support  which  one  person  gives  to 
another  for  his  living.  This  word,  used  by  common-law 
writers,  corresponds  with  the  civil-law  term  "  aliment."  ^ 

The  obligation  on  the  parent's  part  to  maintain  the  child 
continues  until  the  latter  is  in  a  condition  to  provide  for  his 
own  maintenance,  and  it  extends  no  further,  at  common  law, 
than  to  a  necessary  support.*  The  Roman  system  carried  this 
obligation  so  far  that  it  would  not  suffer  a  parent  at  his  death 
to  totally  disinherit  his  child  without  expressly  giving  his 
reasons  for  so  doing.^  And  the  laws  of  Athens  were  to  the 
same  purport.^  Blackstone  does  not  appear  to  approve  of 
carrying  natural  obligation  so  far.  And  he  cites  Grotius  in 
support  of  a  distinction  which  limits  the  child's  natural  right 
to  necessary  maintenance  ;  what  is  more  than  that,  depending 
solely  upon  the  favor  of  parents,  or  the  positive  constitutions 

1  2  Kent  Com.  189. 

2  PuflF.  Law  of  Nations,  I.  4,  ch.  11 ;  1  Bl.  Com.  447. 

3  Cf.  Macphers.  Inf.  210,  and  Fraser  Parent  &  Child,  85. 
♦  2  Kent  Com.  190;  1  Bl.  Com.  448. 

5  Dig.  28,  230;  Nov.  115,  c.  3.  The  statutes  of  some  of  the  United  States 
favor  this  doctrine  to  nearl7  the  same  extent.  See  Mass.  Gen.  Sts.  c.  92, 
§§  26,  27. 

6  2  Potter  Greek  Antiq.  351. 

[344] 


DUTIES  OF  PARENTS.  *  319 

of  the  municipal  law.^     Coke  observes  that  it  is  "  nature's 
provision  to  assist,  maintain,  and  console  the  child."  ^ 

The  statute  43  Eliz.  c.  2,  slightly  amended  by  5  Geo.  I.  c.  8, 
points  out  the  English  policy  in  this  respect.  It  is  provided 
by  this  statute  that  the  father  and  mother,  grandfather  and 
grandmother,  of  poor,  old,  blind,  lame,  and  impotent  persons 
shall  maintain  them  at  their  own  charges,  if  of  sufficient  abil- 
ity ;  and  if  a  parent  runs  away  and  leaves  his  children, 
the  municipal  *  authorities,  by  summary  judicial  pro-  *  320 
cess,  may  seize  upon  his  rents,  goods,  and  chattels,  and 
dispose  of  them  toward  their  relief.-^ 

No  person  is  bound  to  provide  a  niaintenance  for  his  issue, 
except  where  the  children  are  imjDotent  and  unable  to  act, 
through  infancy,  disease,  or  accident,  and  then  is  only  obliged 
to  furnish  them  with  necessaries,  the  penalty  on  refusal  being 
no  more  than  twenty  shillings  a  month.  "  For  the  policy  of 
our  laws,  which  are  ever  watchful  to  promote  industry,"  says. 
Blackstone,  "  did  not  mean  to  compel  a  father  to  maintain  his 
idle  and  lazy  children  in  ease  and  indolence  ;  but  thought  it 
unjust  to  oblige  the  parent  against  his  will  to  provide  them 
with  superfluities,  and  other  indulgences  of  fortune ;  imag- 
ining they  might  trust  to  the  impulse  of  nature,  if  the  chil- 
dren were  deserving  of  such  favors."  ^ 

Lord  Eldon,  viewing  the  same  subject  afterwards  in  the 
light  of  equity  principles,  was  differently  impressed  by  these 
penal  provisions,  and  founded  the  jurisdiction  of  chancery 
upon  the  very  meagreness  of  the  common-law  remedies 
against  keeping  the  child  from  starvation.  "  Is  it,"  says  he, 
"  an  eligible  thing  that  children  of  all  ranks  should  be  placed 
in  this  situation,  that  they  shall  be  in  the  custody  of  the 
father  ;  although  looking  at  the  quantum  of  allowance  which 
the  law  can  compel  the  father  to  provide  for  them,  they  may 
be  regarded  as  in  a  state  little  better  than  that  of  starvation  ? 

1  Grott.  De  J.  B.  et  P.  I.  2,  c.  7,  n.  3;  1  Bl.  Com.  448. 

2  See  2  Kent  Cora.  190. 

3  1  Bl.  Com.  448  ;  Stubb  v.  Dixon,  6  East,  166  ;  Macphers.  Inf.  210.  These 
statutes  (lid  not  extend  to  illegitimates  or  step-children.  Tubb  v.  Harrison,  4  T. 
R.  118 ;  Cooper  v.  Martin,  4  East,  76.  But  this  is  changed  by  stat.  4  &  5  Will. 
4,  c.  76. 

4  1  Bl.  Com.  449 ;  Winston  v.  Newcomen,  6  Ad.  &  El.  301. 

[345] 


*  320  PARENT   AND   CHILD. 

The  courts  of  law  can  enforce  the  rights  of  the  father,  but 
they  are  not  equal  to  the  office  of  enforcing  the  duties  of  the 
father."  i 

The  stat.  43  Eliz.  may  be  considered  as  having  been  trans- 
ported to  the  United  States  as  part  of  our  common  law.     Its 
provisions  have  also  been  re-enacted  in  many  of  our 

*  321    States,   *  as    in    New   Hampshu-e,    Connecticut,   and 

South  Carolina.  In  New  York,  Massachusetts,  and 
some  other  States,  the  provision  as  to  grandjjarents  is  omitted.^ 
This  feeble  and  scanty  provision  of  statute  law  was  intended, 
as  Kent  observes,  for  the  indemnity  of  the  public  against  the 
maintenance  of  paupers.^ 

In  absence  of  special  statutes  to  the  contrary,  the  father-in- 
law  is  not  obliged  in  this  country  to  maintain  his  step-children, 
and  consequently  is  not  entitled  to  their  earnings.*  Under 
the  pauper  acts,  it  is  held  that  the  father's  obligation  to  sup- 
port his  vagabond  son,  who  cannot  support  himself,  does  not 
accrue  until  after  legal  proceedings  have  been  instituted;  and 
the  furnishing  of  previous  supplies  constitutes  no  legal  con- 
sideration to  support  a  new  promise.^  Nor  is  an  insane 
mother,  herself  a  pauper,  under  obhgation  to  support  a  minor 
child,  or  entitled  to  his  earnings.^ 

In  general,  the  legal  obligation  of  the  father  to  maintain  his 
child  under  the  common  law  ceases  as  soon  as  the  child  is 
of  age,  however  wealthy  the  father  may  be,  unless  the  child 
becomes  chargeable  to  the  public  as  a  pauper.^  And  as  the 
language  of  stat.  43  EHz.  rendered  it  inapplicable  to  step- 
children, so  does  it  apply  to  blood  relations  only  ;  and  the 
husband  is  not  liable  for  the  expense  of  maintaining  his  wife's 
mother,^  nor  the  father  for  his  daughter's  husband.^     But  a 

i  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  23  (1827). 

'^  2  Kent  Com.  191,  and  note;  Dover  v.  McMurphy,  4  N.  H.  162;  Comm'rs 
of  Poor  V.  Gansett,  2  Bail.  320.  And  see  Haynes'  Adm'r  v.  Waggoner,  25  Ind. 
174.  3  2  Kent  Com.  191. 

*  Comnionwealtli  v.  Hamilton,  6  Mass.  273,  275;  Freto  v.  Brown,  4  ib.  G75; 
Worcester  v.  Marchant,  14  Pick.  510;  Bond  v.  Lockwood,  33  111.  212. 

5  Mills  V.  Wyman,  3  Pick.  207;  Loorais  v.  Newhall,  15  ib.  159. 

6  Jenness  v.  Emerson,  15  N.  H.  486.  And  see  Sanford  v.  Lebanon,  31  Me. 
124 ;  Farmington  v.  Jones,  36  N.  H.  271. 

7  2  Kent  Com.  192;  Parish  of  St.  Andrew  v.  De  Breta,  1  Ld.  Rayra.  699. 

8  Rex  V.  Munden,  1  Stra.  190.  9  Friend  v.  Thompson,  Wright,  636. 

[  346  ] 


DUTIES   or  PARENTS.  *  321 

quasi  parental  relation  may  sometimes  be  established  ;  and  one 
may  stand  in  loco  ijcirentis  to  another,  and  thus  become  respon- 
sible for  the  maintenance  and  education  of  the  latter, 
on  the  *  principle   that  the  child  is  held  out  to   the    *  322 
world  as  part  of  his  family. 

In  a  state  of  voluntary  separation,  the  husband  jirima  facie ^ 
and  not  the  wife,  is  liable  for  the  support  of  children  h^dng 
with  her  ;  and  if  the  wife  be  justified  in  leaving  her  husband's 
house  and  taking  the  child  with  her,  she  may  pledge  his  credit 
for  the  child's  necessaries  as  well  as  her  own,  so  long  as  he 
neglects  to  make  reasonable  effort  to  regain  the  child's  cus- 
tody.i  But  the  wife  carries  no  such  agency  with  her  when 
divorced,  though  it  be  for  the  husband's  fault,  and  from  bed 
and  board  only.^  And  while  in  case  of  eitlier  separation  or 
divorce,  without  orders  of  custody,  the  obligation  in  general 
continues  as  before,  it  may  be  materially  affected  by  the 
special  circumstances  of  each  case  ;  while  an  award  of  chil- 
dren to  the  mother  should  be  presumed  to  cai:ry  with  it  a 
transfer  of  parental  duties,  as  well  as  of  parental  rights.^ 

We  pass  from  maintenance  under  statute  to  chancery 
maintenance.  Maintenance,  as  ordered  by  courts  of  equity, 
has  grown  into  a  topic  of  considerable  magnitude,  especially 
under  the  English  system.  The  rule  is,  that  where  an  infant 
has  property  of  his  own,  and  his  father  is  dead,  or  is  not  able 
to  support  him,  he  may  be  maintained  out  of  the  income  of 
property,  absolutely  his  own,  by  the  person  in  whose  hands 
the  property  is  held  ;  and  a   court  of  equity  will  allow  all 

1  Kumney  v.  Keyes,  7  N.  H.  571;  Kimball  v.  Keyes,  11  Wend.  32;  Walker 
V.  Laigiiton,  11  Fost.  HI ;  Gill  v.  Read,  5  R.  I.  313.  And  see  Reynolds  v. 
Sweet^er,  15  Gray,  78. 

■■2  Hancock  v.  Merrick,  10  Gush.  41 ;  Filler  v.  Filler,  33  Penn.  St.  50  ;  Burrilt 
V.  Burrilt,  29  Barb.  124. 

3  Stanton  v.  Willson,  3  Day,  37,  appears  to  carry  the  mother's  right  much 
farther;  but  its  aiitiiority  is  questionable.  We  must  admit,  however,  that  in  a 
late  English  case,  presenting  a  strong  state  of  facts,  a  woman  who  lived  apart 
from  lier  husband  for  sufficient  cause,  having  with  her,  against  her  hnsliand's 
will,  their  child,  of  whom  a  court  had  given  her  the  custody,  was  allowed 
(Cockburn,  C.  J.,  dis.)  to  pledge  the  husband's  credit  for  the  child's  reasonable 
expenses ;  she  having  no  adequate  means  of  support.  Bazeley  i".  Forder,  L.  R. 
3  Q.  B.  559.     See  infra,  p.  32G. 

[347] 


♦  322  PARENT   AND    CHILD. 

payments  made  for  this  purpose,  which  appear  upon  investi- 
gation to  have  been  reasonable  and  proper.^ 

As  a  general  rule,  the  father  must,  if  he  can,  maintain  his 
infant  children,  whatever  their  circumstances  may  be  ;  and  no 
allowance  will  be  made  him  for  that  purpose  out  of  their 
property,  while  his  own  means  are  adequate  for  their  support. 
This  principle  is  clearly  established,  both  in  England  and 
America.^ 

*  323        *  But,  if  the  father  is  unable  to  maintain  his  children, 

the  court  will  order  maintenance  for  them  out  of  their 
own  property.^  And  where  the  question  turns  upon  the 
father's  ability,  maintenance  is  given,  not  only  in  case  of  his 
bankruptcy  or  insolvency,  but  whenever  it  appears  that  he  is 
so  straitened  in  his  circumstances  that  he  cannot  give  the  child 
a  maintenance  and  education  suitable  to  the  child's  fortune 
and  expectations.*  The  amount  of  such  fortune,  as  well  as 
the  situation,  ability,  and  circumstances  of  the  father,  will  be 
taken  into  account  by  the  court  in  all  such  cases. 

Courts  now  look  with  great  liberality  to  the  state  of  facts 
in  each  particular  case  of  this  kind  before  them.  Thus, 
there  are  precedents  in  the  English  courts  where  the  father 
had  a  large  income,  and  yet  was  allowed  for  the  maintenance 
of  his  infant  children,  they  having  an  income  still  larger ;  ^ 
though  the  increasing  liberality  of  the  courts  is  now  chiefly 
exhibited  in  their  construction  of  written  directions  for  main- 
tenance now  common  in  deeds  of  settlement  and  other  instru- 
ments, by  which  property  is  secured  to  the  infant.^     In  this 

1  Macphers.  Inf.  213;  2  Story  Eq.  Juris.  §  1354. 

2  Macphers.  Inf.  145,  219 ;  Wellesley  v.  Beaufort,  2  Russ.  28 ;  Butler  v.  But- 
ler, 3  Atk.  60 ;  2  Kent  Com.  191 ;  Darley  v.  Darley,  3  Atk.  399  ;  Cruger  v.  Hey- 
ward,  2  Desaus.  94;  Matter  of  Kane,  2  Barb.  Ch.  375;  Addison  v.  Bowie,  2 
Bland.  606  ;  Harland's  Case,  5  Rawle,  323 ;  Myers  v.  Myers,  2  McCord  Ch.  255 
Tompkins  v.  Tompkins,  3  C.  E.  Green,  303. 

3  2  Kent  Cora.  191 ;  Macphers.  Inf  220. 

4  Buckworth  v.  Buckworth,  1  Cox,  80;  Macphers.  Inf.  220;  Newport  v.  Cook, 
2  Ashm.  332 ;  Matter  of  Kane,  2  Barb.  Ch.  375. 

5  2  Kent  Com.  191 ;  Jervois  v.  Silk,  Coop.  Eq.  52 ;  2  Story  Eq.  Juris.  §  1354 
et  seq.;  Greenwell  v.  Green  well,  5  Ves.  194;  Hoste  v.  Pratt,  3  Ves.  730;  Ex 
parte  Penleaze,  1  Bro.  C.  C.  387,  n. 

6  See  Macphers.  Inf  221-223 ;  Heysham  v.  Heysham,  1  Cox,  179.  And  see 
Allen  V.  Coster,  1  Beasl.  201. 

[  348  ] 


DUTIES   OF  PARENTS.  *  323 

country  there  are  many  instances  where  the  father  has  been 
allowed  for  his  child's  maintenance,  though  not  destitute. 
As  in  a  case  where  the  father  was  guardian  of  his  children, 
labored  for  their  support,  and  had  been  put  to  increased  ex- 
pense by  the  death  of  their  mother.^  And  again,  where  his 
resources  were  very  moderate,  and  the  two  children,  young 
ladies,  had  a  comfortable  income  between  them,^  So 
*  where  the  father  was  poor  and  disabled,  and  his  *  324 
daughter  lived  with  him.^ 

Our  courts  in  such  cases  endeavor  to  pursue  the  course 
which  is  best  calculated  to  promote  the  permanent  interest, 
welfare,  and  happiness  of  the  children  who  come  under  its 
care.  "  And  these,"  says  Chancellor  Walworth,  "  are  not 
always  promoted  by  a  rigid  economy  in  the  application  of 
their  income,  regardless  of  the  habits  and  associations  of  their 
period  of  minority."  *  In  the  case  before  him,  the  father, 
who  was  also  guardian  of  his  daughters,  had  remarried  since 
their  mother's  death,  and  his  income  was  not  more  than  suf- 
ficient to  maintain  himself  and  his  second  wife.  The  daugh- 
ters were  of  ample  means,  and  could  afford  to  contribute 
towards  the  expenses  of  house-keeping,  for  the  sake  of  living 
in  the  family.  The  Chancellor  considered  that  a  home  suit- 
able to  their  condition  in  life  was  much  to  their  advantage ; 
and,  although  it  appeared  that  these  daughters  could  have 
been  boarded  and  educated  at  a  female  seminary  at  less 
expense,  he  felt  warranted  in  allowing  a  liberal  sum  to  the 
father  for  their  support  and  education  at  his  ho  use. ^ 

The  father  may  be  allowed  for  the  expenses  of  past  main- 
tenance, if  special  circumstances  exist ;  not  otherwise,  accord- 
ing to  the  English  rule  of  the  present  day.^  But  the  father's 
non-residence,  and  consequent  inability  to  make  a  seasonable 

*  Harring  v.  Coles,  2  Bradf.  Sur.  349. 
2  Matter  of  Biirke,  4  Sandf.  Ch.  617. 

8  Watts  V.  Steele,  19  Ala.  656.     And  see  Godard  v.  Wagner,  2  Strobh.  Eq. 
1 ;  Beasley  v.  Watson,  41  Ala.  234;  Newport  v.  Cook,  2  Ashm.  332. 
•»  Matter  of  Burke,  4  Sandf.  Ch.  619. 

*  See  Haase  v.  Roerscliild,  6  Ind.  67 ;  Sparhawk  v.  Sparhawk's  Ex'r,  9  Vt. 
41. 

«  2  Story  Eq.  Juris.  Redf.  ed.  §  1354  a  ;  Carmichael  v.  Hughes,  6  E.  L.  &  Eq. 
73,  per  Lord  Cranworth ;  Ex  parte  Bond,  2  Myl.  &  K.  439.  And  see  Presley  v. 
Davis,  7  Rich.  Eq.  105. 

[  349  ] 


*  324  PARENT  AND  CHILD. 

application  for  maintenance,  is  held  a  special  circumstance 
to  justify  such  allowance.^  The  rule  in  this  country,  as  to 
restrospective  allowances,  does  not  appear  to  be  very  strict 
as  concerns  the  parent.^  But  we  apprehend  that  both  in 
England  and  America  maintenance  would  be  allowed  the 
parent  from  the  estate  of  a  full-grown  child  only  on  proof 
of  some  contract.^ 

*  325        *  A  father,  even  if  he  be  not  in  needy  circumstances, 

may  maintain  his  children  out  of  any  fund  which  is 
duly  vested  in  him  for  that  express  purpose.*  He  may  also 
contract  that  certain  property  shall  be  applied  to  the  main- 
tenance and  education  of  his  children,  in  which  case  also  the 
contract  may  be  enforced  in  his  favor,  without  regard  to  the 
question  of  ability ;  and  on  this  ground  provisions  for  main- 
tenance in  an  antenuptial  settlement  have  been  construed  in 
favor  of  the  husband  and  father.^  But  it  is  clear  from  the 
cases,  that  where  the  fund  is  given,  as  a  mere  bounty,  not- 
withstanding a  provision  for  maintenance,  the  father,  if  of 
abilitv,  must  support  the  child ;  ^  and  this  principle  is  ex- 
tended to  the  father's  postnuptial  and  voluntary  settlement 
upon  his  children  as  distinguished  from  antenuptial  con- 
tractsJ  This  will  not  prevent  a  court  from  construing  such 
provisions  in  a  father's  favor,  where  the  facts  show  that  he 
ought,  on  general  principles,  to  receive  assistance.^ 

Where  the  trustee  for  an  infant,  in  the  exercise  of  rightful 
discretion,  has  paid  over  to  the  father,  at  his  request,  certain 
sums  of  money  out  of  the  income  of  the  trust  property,  the 

1  Carmichael  v.  Huglies,  6  E.  L.  &  Eq.  71.  And  see  Stopford  v.  Lord  Can- 
terbury, 11  Sim.  82;  Bruin  v.  Knott,  1  Phill.  572;  1  Tamlyn,  22. 

2  Matter  of  Kane,  2  Barb.  Ch.  375 ;  Matter  of  Burke,  4  Sandf  Ch.  619 ; 
Myers  v.  Myers,  2  McCord  Ch.  214. 

s  See  Tn  re  Cottrell's  Estate,  L.  R.  12  Eq.  566 ;  infra,  p.  372. 
*  Macphers.  Inf.  220  ;  Hawkins  v.  Watts,  7  Sim.  199  ;  Andrews  v.  Partington, 
2  Cox,  223. 

5  Mundy  v.  Earl  Howe,  4  Bro.  C.  C.  224;  Stocken  v.  Stocken,  4  Sim.  152; 
Macphers.  Inf.  220;  Ransome  v.  Burgess,  L.  R.  3  Eq.  773. 

6  Hoste  V.  Pratt,  3  Ves.  729 ;  Hamley  v.  Gilbert,  Jac.  354 ;  Myers  v.  Myers, 

2  McCord  Ch.  255  ;  Jones  v.  Stockett,  2  Bland.  409. 

1  Tn  re  Kennison's  Trusts,  L.  R.  12  Eq.  422. 

8  See  Andrews  v.  Partington,  2  Cox,  223,  commented  upon  in  Hoste  v.  Pratt, 

3  Ves.  729. 

[350 


DUTIES   OF   PARENTS.  *  325 

father  being  a  bankrupt,  it  is  held  that  no  promise  can  be  im- 
plied under  such  circumstances,  on  the  part  of  the  father,  to 
repay  to  the  trustee  the  sums  of  money  thus  applied  when  he 
afterwards  becomes  able  to  do  so ;  there  should  be  something 
to  show  an  express  promise  of  repajauent.^ 

The  mother,  after  the  death  of  the  father,  remains  the  head 
of  the  family.  She  has  the  like  control  over  the  minor  chil- 
dren as  he  had  when  living  ;  and  she  is  then  bound  to  support 
them,  if  of  sufficient  ability .^  This  we  hold  to  be  the  rule 
most  conformable  to  natural  justice  ;  though  there  are  cases 
which  would  seem  to  exempt  her  from  such  obliga- 
tions.^ The  *  statute  of  Elizabeth,  to  which  we  have  *  326 
already  referred,  expressly  includes  the  mother.  And 
since  the  tendency  of  the  day  is  to  give  the  mother  a  more 
equal  share  in  the  parental  rights,  it  follows  that  she  should 
assume  more  of  the  parental  burdens. 

It  is  nevertheless  clear  that  the  courts  show  special  favor 
to  the  mother,  as  they  should  ;  and,  if  the  child  has  property, 
they  will  rather  in  any  case  charge  the  expenses  of  his  edu- 
cation and  maintenance  upon  such  property  than  force  her  to 
contribute.* 

Where  the  court  takes  away  from  the  father  the  care  and 
custody  of  the  children,  chancery  does  not  call  in  aid  of  their 
own  means  the  property  of  the  father,  and  it  directs  mainte- 
nance out  of  their  own  fortunes,  whatever  may  be  their 
father's  circumstances.^  But  it  is  held  in  Illinois  that  where 
infants  are  taken  from  the  custody  of  their  father,  and  have 
no  property  of  their  own,  the  father  is  bound  to  support  them 
at  such  rate  as  the  court  may  order.*^  Local  statutes  some- 
times affect  the  rule  in  this  country ;  while  in  the  divorce 

1  Pearce  v.  Olney,  5  R.  I.  269.     See  In  re  Stables,  13  E.  L.  &  Eq.  61. 

'  Dedham  ?;.  Natick,  16  Mass.  140. 

^  Whipple  !'.  Dow,  2  Mass.  415;  Dawes  v.  Howard,  4  Mass.  97  ;  2  Kent  Com. 
191,  and  cases  cited. 

*  lb. ;  Haley  v.  Bannister,  4  Madd.  275  ;  Hughes  i-.  Hughes,  1  Bro.  C.  C.  388. 
And  see  Lanoy  v.  Duchess  of  Athol,  2  Atk.  447  ;  Ex  parte  Petre,  7  Ves.  403 ; 
Macphers.  Inf.  224  ;  Beasley  v.  Magrath,  2  Sch.  &  Lef.  35  ;  Anne  AValker's  Mat- 
ter, cas.  temp.  Sugd.  299. 

5  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  1  ;  Macphers.  Inf.  224. 

«  Cowls  I'.  Cowls,  3  Gilui.  435.  And  see  supra,  p.  322  ;  McCarthy  v.  Ilinman, 
35  Conn.  538. 

[  351  ] 


*  326  PAKENT   AND    CHILD. 

courts  an  order  of  maintenance  for  children  will  sometimes 
be  made  on  somewhat  the  same  principle  as  alimony  for 
the  wife,  notwithstanding  the  guilty  husband  loses  their 
custody.^ 

If  the  father  is  alive  and  not  able  to  maintain  his  child, 
maintenance  will  be  allowed  without  considering  the  ability 
of  the  mother,  though  she  may  have  a  separate  income.^  And 
even  the  misconduct  of  the  father  will  not  always  exclude 
him  from  participating  in  his  child's  fortune.^ 

Where  a  mother  has  maintained  her  infant  child  without 
the  order  of  the  court,  upon  his  decease,  she  can  claim  for 
past  maintenance  only  such  sum  as  will  effectually  indemnify 
her  for  what  she  has  spent,  without  reference  to  the  amount 
of  his  fortune.*  She  may  have  made  a  gift  of  maintenance  to 
him  so  as  to  be  precluded  from  claiming  any  thing  afterwards 
by  way  of  recompense.^    But  in  any  case  the  widowed 

*  327    mother  is  entitled  to  a  *  reasonable  allowance  out  of 

her  children's  estate  for  their  maintenance,  where  her 
own  means  are  limited.^ 

Courts  of  chancery,  following  a  well  known  principle,  usu- 
ally restrict  the  extent  of  a  child's  maintenance  to  the  income 
of  his  property.'^  But  where  the  property  is  small  and  the 
income  insufficient  for  his  support,  the  court  will  sometimes 
allow  the  capital  to  be  broken.^ 

We  have  assumed  in  the  cases  already  considered,  that 
there  was  some  fund  in  which  the  infants  had  an  absolute  right 
or  interest.  Where  the  interest  is  merely  contingent  the  rule 
is  necessaril}^  strict.^  Maintenance  cannot  be  allowed  to  in- 
fants out  of  a  fund  which,  upon  the  happening  of  the  event 

1  Milford  V.  Milford,  L.  R.  1  P.  &  D.  715. 

2  Macphers.  Inf.  224  ;  Haley  v.  Bannister,  4  Madd.  275. 

3  Macphers.  Inf.  251.     See  Allen  v.  Coster,  1  Beav.  202. 

<  Bruin  v.  Knott,  9  Jur.  979.         &  In  re  Cottrell's  Estate,  L.  R.  12  Eq.  566. 

6  Wilkes  V.  Rogers,  6  Johns.  566;  Hey  ward  v.  Cuthbert,  4  Desaus.  445  ;  Os- 
borne V.  Van  Horn,  2  Fla.  360  ;  Bradshaw  v.  Bradshaw,  1  Russ.  528. 

7  2  Story  Eq.  Juris.  §  1355     Macphers.  Inf.  252. 

8  lb. ;  Barlow  v.  Grant,  1  Vern.  255;  Bridge  v.  Brown,  2  You.  &  C.  C.  181 ; 
Ex  parte  Green,  1  Jac.  &  W.  253  ;  Osborne  v.  Van  Horn,  2  Fla.  360  ;  Newport  v. 
Cook,  2  Ashm.  332.  See  In  re  Coe's  Trust,  4  Kay  &  J.  199;  Matter  of  Bost- 
Tfvick,  4  Jolnis.  Cli.  100;  Donovan  v.  Needham,  15  L.  J.  193. 

9  Ex  parte  Kebble,  11  Ves.  604. 

[  352  ] 


I 


DUTIES   OF  PARENTS.  *  327 

contemplated  by  the  testator  in  the  bequest  of  the  fund,  will 
not  belong  to  the  infants  but  to  some  other  person.^ 

Let  us  here  inquire  how  far  the  child  may  bind  his  father 
as  agent.  A  father  is  not  bound  by  the  contracts  or  debts  of 
his  son  or  daughter,  even  for  necessaries,  as  a  rule,  uidess  the 
circumstances  show  an  authority  actually  given  or  to  be 
legally  inferred.^  The  principles  of  agency  as  between  father 
and  child  might  seem  analogous  to  those  which  govern  the 
relation  of  husband  and  wife  ;  which  last  have  already  been 
considered  at  some  length.  On  the  one  hand,  the  father 
should  be  compelled  to  discharge  his  legal  and  moral  obliga- 
tions as  a  parent,  by  providing  suitable  necessaries  ;  on  the 
other,  he  should  not  be  prejudiced  by  the  acts  of  his  impru- 
dent child. 

*  If  then  the  infant  resides  at  home,  it  is  to  be  pre-  *  328 
sumed  that  the  father  furnishes  whatever  is  necessary 

and  proper  for  his  maintenance  ;  and  a  proper  support  being 
rendered,  under  such  circumstances,  a  third  person  cannot 
supply  necessaries  and  charge  the  father.  So  far,  all  is  clear. 
AVherever  the  infant  is  sub  pofestate  jjarentis  in  fact,  there 
must  be  a  clear  and  palpable  omission  of  duty  in  this  respect, 
on  the  part  of  the  parent,  to  render  him  chargeable,  unless  he 
has  conferred  actual  authority.^ 

The  converse  of  this  rule  has  more  than  once  been  sug- 
gested in  our  American  courts;  namely,  that  where  the  father 
abandons  his  duty,  so  that  his  infant  child  is  forced  to  leave 
his  house,  he  is  liable  for  a  suitable  maintenance  furnished 
the  child  elsewhere.*  And  upon  this  doctrine  was  a  Connect- 
icut case  based  many  years  ago,  where  an  infant  child  had 

1  Ex  parte  Kebble,  11  Ves.  604;  Errat  i'.  Barlow,  14  Ves.  202;  Turner  v. 
Turner,  4  Sim.  4ci0  ;  Matter  of  Davison,  G  Paige,  13G.  As  to  rule  of  procedure 
in  securing  maintenance,  see  further,  Macpliers.  Inf.  214  et  se/j. 

-  2  Kent  Com.  192;  Cromwell  v.  Benjamin,  41  Barb.  5-58;  Gordon  v.  Potter, 
17  Vt.  348;  Pidgin  v.  Cram,  8  N.  H.  350;  Baymond  v.  Loyl,  10  Barb.  483; 
Tonikins  v.  Tomkins,  3  Stockt.  512  ;  Van  Valkenburg  v.  Watson,  13  Johns.  480; 
Mortimore  v.  Wright,  6  M.  &  W.  482;  Kelley  v.  Davis,  40  N.  H.  187. 

^  Tomkins  v.  Tomkins,  3  Stockt.  512;  Townsend  v.  Burnham,  33  N.  II.  27  ; 
Clinton  v.  Rowland,  24  Barb.  tJ34  ;  Keaton  v.  Davis,  18  Geo.  457. 

*  Owen  V.  White,  5  Port.  435,  and  cases  cited  in  the  two  preceding  notes. 

23  [  353  ] 


*  328  PARENT   AND   CHILD. 

"  eloped  "  from  his  father's  house  for  fear  of  personal  violence 
and  abuse  ;  and  his  necessary  siij)port  and  education  were 
furnislied  by  a  stranger.^ 

It  must  be  admitted  that  this  doctrine  of  an  implied  agency, 
against  the  father's  wishes,  such  as  the  common  law  raises  for 
the  wife's  protection,  ought  hardly  to  be  extended  in  an  equal 
degree  to  persons  too  young  to  be  sui  juris  ;  that  the  theory 
above  advanced  is  supported  rather  by  dicta  than  positive 
adjudication;  and  that  whenever  applied,  such  a  rule  is  to  be 
justified  rather  by  public  policy  than  the  well-understood 
liabilities  of  the  father,  as  defined  by  Blackstone.  We  look 
at  the  reports  and  find  that  in  nearly  every  instance  the  father 
was  held  to  be  discharged  from  the  obligation,  or  else  was 
made  liable  on  other  grounds.  There  can  be  no  doubt  that  a 
parent  is  under  a  natural  obligation  to  provide  necessaries  for 
his  minor  children.     But  how  that  obligation  is  to  be 

*  329    enforced  is  *  not  so  clear .^     In  New  York,  there  is 

some  confusion  of  opinion.^  In  Vermont,  this  doctrine 
of  implied  agency,  against  the  father's  wishes,  was  disap- 
proved in  a  case  which  discusses  the  subject  fully ;  though 
the  facts,  it  must  be  conceded,  showed  no  clear  omission  of 
parental  duty.*  But  in  New  Jersey,  the  rule  seems  to  be 
enforceable.^ 

The  latest  English  decisions  are  clearly  against  allowing 
the  child  to  pledge  his  father's  credit  for  necessaries  to  enforce 
a  moral  obligation.  There  must  be  some  contract,  express  or 
implied,  in  order  to  charge  him.  If  a  child  be  turned  upon 
the  world  by  his  father,  he  can  only  apply  to  the  parish,  and 
they  will  compel  the  father,  if  of  ability,  to  pay  for  his  sup- 
port. Says  Lord  Abinger :  "  In  point  of  law,  a  father  who 
gives  no  authority,  and  enters  into  no  contract,  is  no  more 
liable  for  goods  supplied  to  his  son,  than  a  brother,  or  an 
uncle,  or  a  mere  stranger  would  be.     From  the  moral  obliga- 

1  Stanton  v.  Willson,  3  Day,  37.    But  the  point  decided  was  a  different  one. 

-  1  Bl.  Com.  447;  Edwards  v.  Davis,  16  Johns.  285 ;  In  re  Ryder,  11  Paige, 
188 ;  2  Kent  Com.  190. 

3  Cf.  Ra^anond  v.  Loyl,  10  Barb.  483,  with  cases,  supra. 

*  Gordon  v.  Potter,  17  Vt.  348. 

6  Tomkins  r.  Tomkins,  3  Stockt.  517.  As  to  the  wife's  authority  to  bind  her 
husband  for  the  child's  necessaries,  see  supra,  p.  322. 

[354] 


DUTIES  OF  PARENTS.  *329 

tion  a  parent  is  under  to  provide  for  his  children,  a  jury  are, 
not  unnaturally,  disposed  to  infer  against  him  an  admission  of 
a  liability  in  respect  of  claims  upon  his  son,  on  grounds  which 
warrant  no  inference  in  point  of  law."  ^ 

But  very  slight  evidence  may  sometimes  warrant  the  infer- 
ence that  a  contract  for  the  infant's  necessaries  is  sanctioned 
by  the  father  ;  so  zealous  is  the  court  to  enforce  a  moral  obli- 
gation wherever  it  can.  English  authority  to  the  same  effect 
is  not  equally  pointed ;  ^  but  the  American  rule  is  certainly 
humane  and  liberal  in  this  respect.  Thus,  the  father  is  held 
bound  for  necessaries,  where  he  knows  the  circumstances,  and 
makes  no  objection.^  And  for  the  expenses  of  educa- 
tion and  maintenance  *  furnished  on  his  general  con-  *  330 
sent,  and  in  his  negligence.'*  So  too,  being  liable  once, 
the  father  may  be  held  liable  afterwards  by  implication.^ 

The  doctrine  of  agency  is  also  extended  to  general  trans- 
actions, on  the  principle  of  master  and  servant,  in  a  Connect- 
icut case,  where  certain  articles  had  been  delivered  to,  and 
work  done  for,  a  college  student  still  in  his  minority ;  and 
the  court  held  that  the  father  was  liable,  although  the  goods 
were  not  necessaries  ;  the  e\ddence  showing  that  the  father 
had  paid  the  plaintiff's  former  account  of  the  same  nature, 
without  objection  or  giving  notice  not  to  trust  his  son  further, 
and  had  then  (without  the  plaintiff's  knowledge)  given  posi- 
tive orders  to  his  son  to  contract  no  more  debts,  and  had 
placed  him  under  the  care  of  a  friend  with  instructions  to 
furnish  all  that  was  necessary  and  suitable  for  him.'' 

Yet  the  rule  of  principal  and  agent  is  to  be  reasonably  en- 
forced ;  and  in  all  cases  where  there  appears  neither  palpable 
moral  delinquency  on  the  part  of  the  parent,  nor  evidence  of 

1  Mortiraore  v.  "Wright,  6  M.  &  W.  482.  And  see  Shelton  v.  Springett,  11 
C.  B.  452  ;  20  E.  L.  &  Eq.  281 ;  Seaborne  v.  Maddy,  9  Car.  &  P.  497. 

-  Blackburn  v.  Mackey,  1  Car.  &  P.  1 ;  Law  i'.  Wilkin,  6  Ad.  &  El.  781 ; 
cases  of  doubtful  legal  authority.     See  Macphers.  Inf.  514,  515. 

3  Swain  v.  Tyler,  26  Vt.  9;  Thayer  v.  White,  12  Met.  343;  Fowlkes  v. 
Baker,  29  Tex.  135. 

*  Thompson  v.  Dorsey,  4  Md.  Ch.  149. 

*  Plotts  V.  Rosebury,  4  Dutch.  146.    And  see  Deane  v.  Annis,  14  Me.  26. 

6  Bryan  v.  Jackson,  4  Conn.  288.  And  see  Brown  v.  Deloach,  28  Geo.  486 ; 
Deane  v.  Annis,  14  Me.  26 ;  Harper  v.  Lemon,  38  Geo.  227. 

[  355  ] 


*  330  PARENT  AND  CHILD. 

authority  actually  conferred  upon  his  son,  he  cannot  be  held 
liable  for  the  general  contracts  of  the  latter.  A  conditional 
offer  to  pay  for  goods  ordered  of  a  stranger  by  the  child  must 
have  been  clearly  accepted  in  order  to  constitute  such  ratifica- 
tion as  will  bind  the  parent  who  makes  it.^  And  in  numerous 
instances  have  courts  refused  to  make  the  father  liable  on  the 
ground  of  agency .^  So  where  a  child  has  attained  full  age 
the  presumption  is  that  he  will  bind  himself  by  his  own  con- 
tracts. Under  the  latter  circumstances  a  mere  request  to 
furnish  necessaries  does  not  bind  the  father,  though  the  son 
be  living  with  him ;  while  it  is  very  clear  that  the  father  may 
even  thus  bind  himself  by  his  own  independent  promise.^ 
Whenever  a  minor  son  has  left  his  father's  home,  the 

*  831    *  cause  should  be  ascertained,  for  the  disobedience  of 

children  is  not  to  be  encouraged  in  any  event.^  Under 
the  most  favorable  aspect  of  the  infant's  right  to  bind  his 
father  as  agent,  a  third  person  furnishing  goods  must  take 
notice,  at  his  peril,  of  what  is  necessary  for  the  infant  accord- 
ing to  his  precise  situation.^  And  the  oral  promise  of  a  father 
to  pay  a  debt  of  his  son  not  incurred  for  necessaries,  in  con- 
sideration of  the  creditors  forbearing  to  sue  the  son,  must  be 
treated  as  a  promise  to  pay  the  debt  of  another,  and  hence, 
under  the  statute  of  frauds,  not  enforceable.^ 

We  may  here  add  that  this  rule  of  agency  may  sometimes 
be  allowed  to  operate  for  the  parent's  own  benefit  as  against 
a  third  party  ;  the  child  who  could  not  bind  himself  being 
treated  as  the  parent's  agent.''' 

The  parent's  duty,  according  to  some  authorities,  also  es- 

1  Andrews  v.  Garrett,  6  C.  B.  n.  s.  262. 

2  Eitel  V.  Walter,  2  Bradf.  Sur.  287  ;  Raymond  v.  Loyl,  10  Barb.  483  ;  Bush- 
nell  V.  Bishop  Hill  Colony,  28  111.  204.     See  Loomis  v.  Newhall,  15  Pick.  159. 

8  Boyd  I'.  Sappington,  4  Watts,  247;  Patton  v.  Hassinger,  69  Penn.  St.  311. 
And  see  Mills  v.  Wyman,  3  Pick.  207;  Wood  v.  Gills,  Coxe,  449;  Norrls  v. 
Dodge's  Adm'r,  23  Ind.  190. 

*  Raymond  v.  Loyl,  10  Barb.  483;  Angel  v.  McLellan,  16  Mass.  28;  Weeks 
V.  Merrow,  40  Me.  151. 

5  Van  Valkenburgli  v.  Watson,  13  Johns.  480. 

6  Dexter  v.  Blanchard,  11  Allen,  365. 
^  Darling  v.  Noyes,  32  Iowa,  96. 

[  356  ] 


DUTIES   OF  PARENTS.  *33l 

tends  to  providing  the  children  with  a  profession  or  trade  as 
well  as  a  suitable  education.  How  far  the  duty  of  competent 
provision  extends,  must  depend  upon  the  condition  and  cir- 
cumstances of  the  father.  Kent  observes  that  this  duty  is 
not  susceptible  of  municipal  regulations,  and  is  usually  left  to 
the  dictates  of  reason  and  natural  affection.^ 

1  2  Kent  Com.  202. 

[357] 


*  332  PAllENT  AND  CHILD. 


332  *  CHAPTER  III. 


THE   RIGHTS   OF  PARENTS. 


The  rights  of  parents  result  from  their  duties,  being  given 
them  by  law  partly  to  aid  in  the  fulfillment  of  their  obliga- 
tions, and  partly  by  way  of  recompense.^  As  they  are  bound 
to  maintain  and  educate,  the  law  has  given  them  certain  au- 
thority over  their  children,  and  in  the  support  of  that  authority 
a  right  to  the  exercise  of  such  discipline  as  may  be  requisite 
for  the  discharge  of  their  important  trust.  This  is  the  true 
foundation  of  parental  power.^ 

Some  of  the  ancient  nations  carried  the  parental  authority 
beyond  all  natural  limits.  The  Persians,  Egyptians,  Greeks, 
Gauls,  and  Romans  tolerated  infanticide.  Under  the  ancient 
Roman  laws  the  father  had  the  power  of  life  and  death  over 
his  childi-en :  on  the  principle  that  he  who  gave  had  also  the 
power  to  take  away ;  ^  and  thus  did  law  attribute  to  man 
those  functions  which  belong  only  to  the  Supreme  Being. 
This  power  of  the  father  was  toned  down  in  subsequent 
constitutions,  and  in  the  time  of  the  Emperor  Hadrian  the 
wiser  maxim  prevailed,  "  Patria  potestas  in  pietate  debet,  non 
in  atrocitate  consistere  ;  "  for  which  reason  a  father  was  ban- 
ished who  had  killed  his  son.  The  Emperor  Constantino 
made  the  crime  capital  as  to  adult  children  ;  and  infanticide 
was  under  Valentinian  and  Valens  punishable  by  death.  Thus 
was  the  doctrine  of  paternal  supremac}^  gradually  reduced, 

though  at  the  civil  law  never  wholly  abandoned.^ 
*  333        *  The  common  law,  far  more   discreet,  gives  the 
parent  only  a  moderate  degree  of  authority  over  his 

1  1  Bl.  Com.  452.  2  2  Kent  Com.  203. 

'  Cod.  8,  47,  10 ;  2  Bl.  Cora.  452. 

<  1  Bl.  Com.  452 ;  2  Kent  Com.  204 ;  1  Heinec.  Antiq.  Rom.  Jur.  9 ;  Dr.  Tay- 
lor Civ.  Law,  403-406  ;  Forsyth  Custody,  3. 
[358] 


RIGHTS   OF  PARENTS.  *  333 

child's  person,  which  authority  reLaxes  as  the  child  grows 
older.  With  the  progress  of  refinement  j)arents  have  learned 
to  enforce  obedience  by  kindness  rather  than  severity ;  and 
although  the  courts  are  reluctant  to  interfere  in  matters  of 
family  discipline,  they  will  discountenance  every  species  of 
cruelty  which  goes  by  the  name  of  parental  rule.  The  com- 
mon law  gives  the  right  of  moderate  correction  of  the  child 
in  a  reasonable  manner :  "  for,"  it  is  said,  "  this  is  for  the 
benefit  of  his  education."  ^  But  at  the  same  time  the  parent 
must  not  exceed  the  bounds  of  moderation,  and  inflict  cruel 
and  merciless  punishment ;  for  if  he  do,  he  is  liable  to  be 
punished  by  indictment.  And  he  may  be  found  guilty  of 
manslaughter,  or  even  murder,  under  gross  circumstances.^ 
Thus,  where  a  father  put  his  child,  a  blind  and  helpless  boy, 
in  a  cold  and  damp  cellar,  without  fire,  during  several  days 
in  midwinter,  giving  as  his  only  excuse  that  the  boy  was 
covered  with  vermin,  he  was  rightly  held  subject  to  indict- 
ment and  punishment  for  such  wanton  cruelty .^ 

So  may  a  parent  at  the  common  law  be  indicted  for  expos- 
ure and  neglect  of  his  children ;  and  the  heinousness  of  the 
offence  depends  in  a  great  measure  upon  the  proof  of  simple 
negligence  or  wilful  cruelty.  The  parent  too  who  suffers  his 
little  child  to  starve  to  death  commits  murder.^  But  the 
child's  tenderness  of  age  and  helplessness  are  elements  in  such 
cases  ;  and  when  children  grow  up  they  are  presumed  to  pro- 
vide for  their  urgent  wants. 

The  topic  of  parental  custody  is  one  of  absorbing  impor- 
tance in  England  and  America ;  and  its  principles  have 
received  the  most  ample  discussion  in  the  courts  of  both 
countries.  The  fundamental  principle  of  the  common  law 
was  that  the  father  possessed  the  paramount  right  to  the  cus- 
tody and  control  of  his  minor  children,  and  to  superintend 

1  1  Hawk.  P.  C.  130 ;  1  Bl.  Cora.  452. 

2  1  Russ.  Crimes,  Grea.  ed.  490 ;  Regina  v.  Edwards,  8  Car.  &P.  Gil ;  2  Bish. 
Crim.  Law,  §  714. 

3  Fletcher  v.  People,  52  111.  395  ;  Johnson  i-.  State,  2  Humph.  283. 

*  4  Bl.  Com.  182,  183;  2  Bish.  Crim.  Law,  §§  688,  712;  Regina  v.  White, 
L.  R.  1  C.  C.  311. 

[  359  J 


*333  PARENT  AND    CHILD. 

their  education  and  nurture.^  The  niother,  as  such,  had  little 
or  no  authority  in  the  premises.^  The  Roman  law  en- 
*  334  joined  upon  children  the  duty  of  showing  *due  rev- 
erence and  respect  to  the  mother,  and  punished  any 
flagrant  instance  of  the  want  of  it ;  but  beyond  this  it  seems 
to  have  recognized  no  claim  on  her  part.^  Indeed,  the  father 
is  permitted  by  Anglo-Saxon  policy  to  perpetuate  his  authority 
beyond  his  own  life  ;  for  he  may  constitute  a  testamentary 
guardian  of  his  infant  children.* 

In  case  there  is  no  father,  then  the  mother  is  entitled  to 
the  custody  of  the  children ;  supposing,  of  course,  the  rights 
of  no  testamentary  guardian  intervene.^  She  has,  as  natural 
guardian,  a  right  to  the  custody  of  the  person  and  care  of  the 
education  of  her  children  ;  "  and  this  in  all  countries,"  said 
Lord  Hardwicke,  "  where  the  laws  do  not  break  in."  ^  The 
priority  of  the  surviving  mother's  right  to  custody  is  fre- 
quently a  matter  of  statute  regulation  ; '  but  her  absolute 
right  on  remarriage  is  not  so  clearly  recognized.  Her  claims, 
as  we  shall  see  hereafter,  may  conflict  with  those  of  a  guar- 
dian. 

Were  these  invariable  rules,  uncontrolled  by  the  courts, 
unchanged  by  statute,  this  common-law  doctrine  of  custody 
would  be  as  simple  of  application  as  unjust.  It  is  neither. 
And  the  courts  of  chancery,  in  assuming  a  liberal  jurisdiction 
over  the  persons  and  estates  of  infants,  soon  made  the  claims 
of  justice  override  all  considerations  of  parental  or  rather 
paternal  dominion,  at  the  common  law.^  Thus  Lord  Thur- 
low,  in  a  case  where  it  appeared  that  the  father's  affairs  were 

1  Ex  parte  Hopkins,  3  P.  Wms.  151 ;  2  Story  Eq.  Juris.  §§  1341, 1342  ;  2  Kent 
Com.  205;  Forsyth  Custody,  10;  People  v.  Olmstead,  27  Barb.  9,  and  cases 
cited;  Ex  parte  M'Clellan,  1  Dowl.  P.  C.  84. 

2  See  1  Bl.  Com.  453.  3  Cod.  8,  tit.  47,  §  4;  Forsyth  Custody,  5. 

*  Stat.  12  Car.  2,  c.  24,  re-enacted  in  most  of  the  United  States.  See  Guar- 
dian and  Ward,  infra. 

5  See  Guardian  and  Ward,  infra. 

6  Villareal  v.  Mellish,  2  Swanst.  536;  Forsyth  Custody,  11,  109  ;  2  Kent  Com. 
606 ;  People  v.  Wilcox,  22  Barb.  178  ;  Osborn  v.  Allen,  2  Dutch.  388.  So  where 
the  father  is  sentenced  to  transportation.     Ex  parte  Bailey,  6  Dowl.  P.  C.  311. 

"  2  &  3  Vict.  c.  54;  Mass.  Gen.  Sts.  c.  109,  §  4 ;  State  v.  Scott,  10  Fost.  274; 
Striplin  v.  Ware,  36  Ala.  87.     See  Heyward  v.  Cutlibert,  4  Desaus.  445. 
2  Story  Eq.  Juris.  §  1341.    And  see  Butler  v.  Freeman,  Ambl.  302. 

[360] 


RIGHTS  OF  PARENTS.  *  334 

embarrassed,  that  lie  was  an  outlaw  and  resided  al)road,  that 
his  son,  an  infant,  had  considerable  estate,  and  that  the  mother 
lived  apart  from  her  husband  and  principally  directed 
the  child's  *  education,  restrained  the  father  from  inter-  *  335 
fering  without  the  consent  of  two  persons  nominated 
for  that  purpose  ;  and  with  reference  to  the  objection  that 
the  court  had  no  jurisdiction,  he  added  that  he  knew  there 
was  such  a  notion,  but  he  was  of  opinion  that  the  court  had 
arms  long  enough  to  reach  such  a  case  and  to  prevent  a  father 
from  prejudicing  the  health  or  future  prospects  of  the  child  ; 
and  he  signified  that  he  should  act  according!}'.^ 

But  the  leading  case  on  this  subject  is  that  of  Wellesley  v. 
The  Duke  of  Beaufort^  which  went  on  appeal  from  Lord  Eldon 
to  the  House  of  Lords ;  and  in  whjcli  the  learned  Lord  Chan- 
cellor's judgment  was  unanimously  affirmed.^  There  the 
children  were  taken  from  a  father  who  was  living  in  adultery. 
In  the  course  of  his  elaborate  judgment  in  this  case,  Lord 
Eldon  cited  with  approbation  a  dictian  of  Lord  jNIacclesfield, 
to  the  effect  that  where  there  is  reasonable  ground  to  believe 
that  the  children  would  not  be  properly  treated,  the  court 
would  interfere  without  waiting  further,  upon  the  principle 
that  preventing  justice  was  better  than  punishing  justice.^ 

The  evidence  showed  that  the  conduct  of  the  father  was  of 
the  most  profligate  and  immoral  description.  It  appeared 
that  he  had  ill-treated  his  wife,  continued  his  adulterous  con- 
nection to  the  time  of  judicial  proceedings,  and  in  his  letters 
to  his  young  children  had  frequently  encouraged  them  in 
habits  of  swearing  and  keeping  low  company.  Lord  Redes- 
dale,  in  the  course  of  his  opinion  before  the  House  of  Lords, 
repudiated  emphatically  the  insinuation  that  j)aternal  power 
is  to  be  considered  more  than  a  trust.  "  Look  at  all  the  ele- 
mentary writings  on  the  subject,"  he  adds :  "  they  say  that 
a  father  is  intrusted  with  the  care  of  his  children  ;  that  he 
is  intrusted  with  it  for  this  reason,  because  it  is  supposed 

1  Creuze  v.  Hunter,  2  Bro.  C.  C.  4D9,  n. ;  2  Cox,  242.  Aiul  see  Whitfield  v. 
Hales,  12  Ves.  492. 

2  2  Russ.  1 ;  Wellesley  v.  Wellesley,  2  Bligh  x.  s.  124  ;  Forsyth  Custody,  23 
et  seq. 

3  Duke  of  Beaufort  v.  Perty,  1  P.  Wms.  703,  cited  in  Wellesley  v.  Duke  of 
Beaufort,  supra. 

[  361  ] 


*  335  PARENT  AND   CHILD. 

*  336    his  natural  affection  *  would  make  him  the  most  proper 

person  to  discharge  the  trust."  ^ 

But  the  result  of  the  English  authorities  is  to  establish  the 
principle,  independently  of  statutory  provisions,  that  the  Court 
of  Chancery  will  interfere  to  disturb  the  paternal  rights  only 
in  cases  of  his  gross  misconduct ;  such  misconduct  seeming, 
however,  to  be  regarded  with  reference  rather  to  the  interests 
of  the  child  than  the  moral  delinquenc}^  of  the  parent.  If 
the  father  has  so  conducted  himself  that  it  will  not  be  for  the 
benefit  of  the  infants  that  they  should  be  delivered  to  him,  or 
if  their  being  with  him  will  injuriously  affect  their  happiness, 
or  if  they  cannot  associate  with  him  without  moral  contami- 
nation, or  if,  because  they  associate  with  him,  other  persons 
will  shun  their  society,  the  court  will  award  the  custody  to 
another.^  It  is  held  that  chancery  has  nothing  to  do  with 
the  fact  of  the  father's  adultery,  unless  he  brings  the  child 
into  contact  with  the  woman.^  But  unnatural  crime  is  other- 
wise regarded.*  Atheism,  blasphemy,  irreligion,  call  for  inter- 
ference, when  the  minds  of  young  children  may  be  thereby 
poisoned  and  corrupted  ;  although  in  matters  of  purely  relig- 
ious belief  there  is  of  course  much  difficulty  in  defining  that 
degree  of  latitude  which  should  be  allowed.  Says  Lord 
Eldon,  "  With  the  religious  tenets  of  either  party  I  have 
nothing  to  do,  except  so  far  as  the  law  of  the  country  calls 
upon  me  to  look  on  some  religious  opinions  as  dangerous  to 
society."  ^ 

Mere  poverty  or  insolvency  does  not  furnish  an  adequate 

ground  for  depriving  the  father  of  his  children ;  not  even 

though  a  fund  is  offered  for  their  benefit,  conditioned 

*  337    upon  the  *  surrender  of  their  custody.^     Yet  so  solici- 

1  Wellesley  v.  TTellesley,  2  Bligh  n.  s.  141  (.1828). 

2  Anonymous,  11  E.  L.  &  Eq.  281 ;  s.  c.  2  Sim.  x.  s.  54;  Forsyth  Custody, 
52;  De  Manneville  v.  De  Manneville,  10  Ves.  52;  Warde  v.  Warde,  2  Phil. 
786. 

3  Ball  V.  Ball,  2  Sim.  35 ;  Lord  Eldon,  n.  6  to  Lyons  v.  Blenkin,  Jac.  254. 
The  English  divorce  act  indicates  the  peculiar  views  prevalent  in  that  country 
as  to  adultery  committed  by  a  married  man. 

*  Anonymous,  11  E.  L.  &  Eq.  281 ;  s.  c.  2  Sim.  x.  s.  34. 

*  Lyons  v.  Blenkin,  Jac.  256.     See  Shelley  v.  Westhrooke,  Jac.  266. 

6  Ex  parte  Hopkins,  3  P.  Wms.  152 ;   Colston  v.  Morris,  Jac.  257,  n.  11 ; 

[  362] 


RIGHTS   OF  PARENTS.  *  337 

tous  is  chancery  for  the  welfare  of  its  wards,  that  it  seems 
indisposed  to  sacrifice  their  large  pecuniary  opportunities 
to  the  caprice  of  the  natural  protector.  Thus  far  has  chan- 
cery carried  its  exception,  that  if  property  be  settled  upon 
an  infant,  uj)on  condition  that  the  father  surrenders  his  right 
to  the  custody  of  its  person,  and  he,  by  acquiescing  for  a 
time,  and  permitting  the  child  to  be  educated  in  a  manner 
conformably  to  the  terms  of  the  gift  or  bequest,  encourages 
corresponding  expectations,  he  will  not  be  allowed  to  dis- 
appoint them  afterwards  by  claiming  possession  of  the  infant. 
He  has  in  such  a  case  "  waived  his  parental  right."  ^ 

The  English  courts  of  common  law  hkewise  interfere  in 
questions  relating  to  the  custody  of  infants  by  writ  of  habeas 
corpus^  which,  in  general,  lies  to  bring  up  persons  who  are  in 
custody,  and  who  are  alleged  to  be  subject  to  illegal  restraint.^ 
Lord  Mansfield  once  said  that  the  common-law  court  is  not 
bound  to  deliver  an  infant,  when  set  free  from  illegal  restraint, 
over  to  anybody,  nor  to  give  it  any  privilege  ;  ^  but  the  later 
English  rule  is,  that  where  a  clear  right  to  the  custody  is 
shown  to  exist  in  any  one,  the  court  has  no  choice,  but  must 
order  the  infant  to  be  delivered  up  to  him.*  This  jurisdiction 
is  less  ample  than  that  of  the  chancery  courts,  to  whose  au- 
thority it  must  be  considered  subservient.^ 

The  English  rule,  up  to  the  year  1839,  was  there- 
fore that  the  *  father  is  entitled  to  the  sole  custody  of   *  338 
his  infant  child  ;  controllable,  in  general,  by  the  court 
only  in  case  of  very  gross  misconduct,  injurious  to  the  child. 
Such  a  state  of  things  was  unjust,  since  it  took  httle  account 
of  the  mother's  claims  or  feelings  in  a  matter  which  most 

Macphers.  Inf.  142,  143 ;  Forsyth  Custody,  37 ;  Earl  &,  Countess  of  Westmeath, 
Jac.  251,  n.  c.     But  see  Ex  parte  Mountfort,  15  Ves.  445. 

1  Per  Lord  Hardwicke,  Blak«  r.  Leigh,  Ambl.  307;  Powell  v.  Cleaver,  2  Bro. 
C.  C.  4'JO;  Creuze  v.  Hunter,  2  Cox,  242;  Forsyth  Custody,  38,  53;  Lyons  v. 
Blenkin,  Jac.  254,  262. 

2  Macphers.  Inf.  152 ;  Ex  parte  Glover,  4  Dowl.  P.  C.  293  ;  Forsyth  Custody, 
17,  54 ;  In  re  Pulbrook,  11  Jur.  185 ;  In  re  Fynn,  2  De  G.  457 ;  s.  c.  12  Jur.  713  ; 
Rex  V.  Greenhill,  4  Ad.  &  El.  624. 

»  Rex  V.  Delarel,  3  Burr.  1436  ;  1  W.  Bl.  409. 
«  Rex  V.  Isley,  5  Ad.  &  El.  441. 

6  See  Wellesley  v.  Wellesley,  2  Bligh  n.  s.  136,  142 ;  Ex  parte  Skinner,  9 
Moore,  278. 

[363] 


*  338  PARENT   AND    CHILD. 

deeply  interested  her.  This  finall}^  led  to  the  passage  of  stat. 
2  &  3  Vict.  c.  54,  known  as  Justice  Talfourd's  Act,  which 
introduced  important  changes  into  the  law  of  parental  cus- 
tody.^  This  act  does  not  appear  to  have  interfered  with  the 
father's  right  of  custod}^  further  than  to  introduce  new  ele- 
ments and  considerations  under  which  that  right  is  to  be 
exercised.  The  act  proceeds  upon  three  grounds :  First,  it 
assumes  and  proceeds  upon  the  existence  of  the  paternal 
right.  Secondly,  it  connects  the  paternal  right  with  the 
marital  duty,  and  imposes  the  marital  duty  as  the  condition 
of  recognizing  the  paternal  right.  Thirdly,  the  act  regards 
the  interest  of  the  child.^  If  the  two  considerations  of  mar- 
ital dut}^  to  be  observed  towards  the  wife  and  of  the  interest 
of  the  child  can  be  attained  consistently  with  the  father's 
retaining  the  custody  of  the  child,  his  common-law  paternal 
right  will  not  be  disturbed.^ 

In  this  country  the  doctrine  is  universal  that  the  courts  of 
justice  may,  in  their  sound  discretion,  and  when  the  morals  or 
safety  or  interests  of  the  children  strongly  require  it,  withdraw 
their  custody  from  the  father  and  confer  it  upon  the  mother, 
or  take  the  children  from  both  parents  and  place  the  care  and 
custody  of  them  elsewhere.'^  The  rule  as  to  legal  preference 
is  essentially  that  of  the  common  law,  with,  however,  an  in- 
creasing liberality  iii  favor  of  the  mother  ;  strengthened,  in 
no  slight  degree,  by  positive  legislation.  Our  rule  of  pro- 
cedure is  somewhat  different  from  that  noticeable  in 

*  339    the  English  system.    For  though  sometimes  *  the  right 

of  custody  is  to  be  determined  by  habeas  corpus,  and 
sometimes  by  proceedings  in  equity,  while  very  frequently 
incidental  to  divorce  suits  ;  in  any  case,  the  circumstances  will 
be  fully  considered  by  the  court,  and  a  decision  rendered  on 
general  principles  of  justice. 

The  father  has,  in  America,  the  paramount  right  of  custody 

1  Ex  parte  Woodward,  17  Jur.  56 ;  Forsyth  Custody,  137.     See  Forsyth,  ib. 
139,  140. 

2  Per  Turner,  V.  C,  in  Ex  parte  Woodward,  17  E.  L.  &  Eq.  77 ;  17  Jur.  56. 

3  Ib.     See  also  Warde  v.  Warde,  2  Ph.  787.     Stat.  8  &  4  Vict.  c.  90,  empow- 
ers chancery  to  assign  the  care  and  custody  of  infants  convicted  of  felony. 

*  2  Kent  Com.  205,  and  cases  cited  ;  1  Story  Eq.  Juris.  §  1341. 

[  364  ] 


RIGHTS   or   PARENTS.  *  339 

independently  of  all  statutes  to  the  contraiy.  But  this  para- 
mount right  may  be  forfeited  by  his  misconduct.^  Nor  do  the 
decisions  in  our  courts  go  to  the  extent  of  the  English  rule  in 
sustaining  the  husband  against  his  wife,  despite  his  immoral 
behavior  or  marital  misconduct.  "  It  is  an  entire  mistake," 
says  Judge  Story,  "  to  suppose  that  the  court  is  bound  to  de- 
liver" over  the  infant  to  its  father,  or  that  the  latter  has  an 
absolute  vested  right  in  the  custody."  ^  Xhe  cardinal  prin- 
ciple relative  to  such  matters  is  to  regard  the  benefit  of  the 
infant ;  to  make  the  welfare  of  the  children  paramount  to  the 
claims  of  either  parent.^  While  States  differ  as  to  the  extent 
of  the  father's  claims  in  preference  to  the  mother,  in  this  latter 
principle  they  all  agree  ;  aiid  judicial  precedents,  judicial 
dicta^  and  legislative  enactments  all  lead  to  one  and  the  same 
irresistible  conclusion.  The  primary  object  of  the  American 
decisions  is  then  to  secure  the  welfare  of  the  child,  and  not 
the  special  claims  of  one  or  the  other  parent.  The  English 
case  of  Rex  y.G-reenhiU,^  which,  in  effect  enabling  the  father 
to  take  his  children  from  his  blameless  wife  and  place  them 
in  the  charge  of  a  woman  with  whom  he  cohabited,  hastened 
the  passage  of  Justice  Talfourd's  Act,^  has  been  repeatedly 
condemned  in  the  United  States.  Indeed,  our  courts 
have  required  no  such  statute  *  to  prevent  them  from  *  340 
taking  the  custody  of  any  child  from  one  whose  paren- 
tal influence  is  found  to  be  injurious  to  the  child's  welfare  ; 
and  if  a  father  wrongs  his  wife,  it  is  readily  j)resumed  that  he 
will  wrong  his  children  likewise.*^    The  American  rule  is  not, 

1  2  Kent  Com.  205 ;  People  v.  Mercein,  3  Hill,  309 ;  People  v.  Olmstead,  27 
Barb.  9;  Miner  v.  Miner,  11  111.  43;  Cole  v.  Cole,  23  Iowa,  433;  State  v.  Baird, 
6  C.  E.  Green,  384;  Smith  Pet'r,  13  111.  138.  But  see  Gisliwiler  v.  Dodez,  4 
Ohio  St.  615. 

2  United  States  i-.  Green,  3  Mason,  382. 

3  Case  of  Waldron,  13  Johns.  418  ;  People  iv  Mercein,  3  Hill,  399;  Ex  parte 
Schumpert,  6  Rich.  344  ;  Wood  v.  Wood,  3  Ala.  750  ;  Gisliwiler  v.  Dodez,  4 
Ohio  St.  615.  *  4  Ad.  &  El.  624. 

*  Forsyth  Custody,  69,  137.  Lord  Denman,  who  had  sat  in  this  case,  de- 
clared that  there  was  not  one  of  tlie  court  who  liad  not  felt  ashamed  at  the  stale 
of  the  law.     See  ib.  09,  n. 

6  Bedell  v.  Bedell,  1  Johns.  Ch.  604  ;  Barrere  v.  Barrere,  4  Johns.  Ch.  187, 
197 ;  2  Bish.  Mar.  &  Div.  5th  ed.  §  532  ;  Ex  parte  Schumpert,  6  Rich.  344  ;  The 
People  V.  Chegaray,  18  Wend.  637. 

[  865  ] 


*  340  PARENT  Al^D  CHILD. 

however,  one  of  fixed  and  determined  principles.    Much  must 
be  left  to  the  peculiar  surroundings  of  each  case.^ 

Proceedings,  as  to  the  custody  of  children,  are  usually  in 
this  country  conducted  by  writ  of  habeas  corpus.  And  the 
settled  rule  with  us  is  that,  while  the  court  is  bound  to  free 
the  person  from  illegal  restraint,  it  is  not,  bound  to  decide 
who  is  entitled  to  the  guardianship,  or  to  deliver  infants  to 
the  custody  of  any  particular  person ;  but  this  may  be  done 
whenever  deemed  proper.  In  other  words,  it  is  in  the  sound 
discretion  of  the  court  to  alter  the  custody  of  the  infants,  or 
not.2 

Our  divorce  jurisprudence  being,  until  recently,  quite  dif- 
ferent from  that  of  England,  further  opportunity  has  been 
furnished  for  a  departure  from  the  common-law  rules  which 
favor  the  paternal  right  of  custody.  The  same  tribunal  which 
hears  the  divorce  cause  has  power  to  direct  with  whom  of  the 
parties,  or  what  third  person,  the  children  shall  be.^ 

*  3-11    Like  powers  are  *  now  conferred  upon  the  English 

matrimonial  court  by  recent  statutes ;  and  the  child's 
custody  may  be  given  to  a  parent  or  a  third  person ;  gene- 
rally to  the  innocent  parent,  though  with  due  regard  to  the 
child's  weKare ;  and,  in  suitable  cases,  with  a  right  of  access 
to  the  parent  or  parents  deprived  of  custody.'*  Where  the 
custody  of  a  child  is  the  subject  of  chancery  or  divorce  pro- 

1  Cook  V.  Cook,  1  Barb.  Ch.  639  ;  Dailey  v.  Dailej,  "Wright,  514  ;  Common- 
wealth V.  Addicks,  2  S.  &  R.  174. 

2  Commonwealth  v.  Addicks,  5  Binn.  520 ;  Armstrong  v.  Stone,  9  Gratt.  102; 
Case  of  Waldron,  13  Johns.  418  ;  State  v.  Smith,  6  Me.  462 ;  State  ex  rel.  State 
V.  Paine,  4  Humph.  523 ;  Commonwealth  v.  Briggs,  16  Pick.  203 ;  Ward  v. 
Roper,  7  Humph.  Ill ;  Foster  v.  Alston,  6  How.  (Miss.)  406  ;  Stigall  v.  Turney, 
2  Zabr.  286 ;  Mercein  v.  People,  25  Wend.  64 ;  State  v.  King,  1  Geo.  Dec.  93 ; 
State  V.  Banks,  25  Ind.  495;  Bennet  v.  Bennet,  2  Beasl.  114;  Ex  parte  Wil- 
liams, 11  Rich.  452  ;  State  v.  Richardson,  40  N.  H.  272. 

3  2  Bish.  Mar.  &  Div.  5th  ed.  §§  526,  530. 

4  Stats.  20  &  21  Vict.  c.  85,  §  35;  22  &  23  Vict.  c.  61,  §  4.     See  Ahrenfeldt 
V.  Ahrenfeldt,  1  Hoff.  Ch.  497  ;  Spratt  v.  Spratt,  1  Swab.  &  T.  215;  2  Bish.  Mar. 
&  Div.  5th  ed.  §§  532-544,  and  cases  cited  ;  Bedell  v.  BedeU,  1  Johns.  Ch.  604 
Chetwynd  v.  Chetwynd,  L.  R.  1  P.  &  D.  39 ;  Harding  v.  Harding,  22  Md.  337 
Mallinson  v.  Mallinson,  L.  R.  1  P.  &  D.  221;  McBride  v.  McBride,  1  Bush,  15 
Goodrich  v.  Goodrich,  44  Ala.  670. 

[366] 


RIGHTS   OF  PARENTS.  *  341 

ceedings,  the  court  will  often  be  justified  in  making  tempo- 
rary arrangements  for  his  custody. ^ 

Some  American  statutes  concerning  custody  are  worthy  of 
notice.  Following  the  temper  of  the  times,  the  New  York 
legislature  of  1860  enacted  that  "  every  married  woman  is 
hereby  constituted  and  declared  to  be  the  joint  guardian  of 
her  children,  with  her  husband,  with  equal  powers,  rights, 
and  duties  in  regard  to  them  with  her  husband."  ^  Such  a 
statute,  unexplained,  might  seem  to  do  away  altogether  with 
the  paramount  claims  of  the  husband.  But  the  courts  ap- 
peared disposed  to  regard  the  innovation  with  little  favor ; 
and  the  law  was  in  1862  repealed.^  An  earlier  statute  of 
New  York  provides  that  if  the  parents  hve  in  a  state  of  sep- 
aration, without  being  divorced,  and  without  the  fault  of  the 
wife,  the  courts  may,  on  her  application,  award  the  custody 
of  the  child  to  the  mother.^  The  discretion  thus  conferred 
upon  the  courts  is  a  judicial  one,  however,  and  is  to  be  exer- 
cised with  due  reference  to  the  cause  of  separation,  and  the 
conduct  and  character  of  the  parties.  Legislative  provisions 
of  a  like  tendency  are  frequently  to  be  met  with  in  other 
States.  Thus  in  Massachusetts,  it  is  enacted  that,  pending 
divorce  controversies,  the  respective  rights  of  the  parents 
shall,  in  the  absence  of  misconduct,  be  regarded  as  equal,  and 
that  the  happiness  and  welfare  of  the  children  shall  determine 
the  custody  in  which  they  shall  be  placed.*  And  under  a 
still  more  recent  statute  in  New  Jersey,  the  court  is  to  a 
certain  extent  deprived  of  its  discretion  in  disposing  of 
the  *  custody  of  children  whose  parents  are  separated,  *  342 
but  not  divorced ;  for  by  this  statute  the  custody  of 

1  Hutson  V.  Townsend,  6  Rich.  Eq.  249;  Barnes  v.  Barnes,  L.  R.  1  P.  &  D. 
463. 

2  People  V.  Brooks,  3-5  Barb.  85 ;  People  v.  Boice,  39  Barb.  307.  In  the 
former  case  a  married  woman,  who  lived  apart  from  her  husband,  no  misconduct 
on  his  part  being  shown,  sought  under  the  new  statute  to  obtain  custody  of  the 
ciiildren. 

3  2N.  Y.  Rev.  Sts.  148;  2  Kent  Com.  205,  n.;  People  v.  Mercein,  3  Hill, 
399.  And  see  People  v.  Brooks,  supra.  See  N.  Y.  act  18G2,  c.  172,  §  G,  which 
restrains  the  father  from  binding  his  child  as  apprentice,  or  parting  with  his  con- 
trol, or  creating  a  testamentary  guardian,  without  the  mother's  written  assent. 

*  Mass.  Gen.  Sts.  c.  107,  §  37. 

[367] 


*  342  PARENT   AND    CHILD. 

the  children  under  seven  years  of  age  is  transferred  from  the 
father  to  the  mother.^ 

It  is  sometimes  a  question,  in  proceedings  relative  to  the 
custody  of  minors,  how  far  the  child's  own  wishes  should  be 
consulted.  Where  the  object  is  simply  that  of  custody,  the 
rule,  though  not  arbitrary,  rests  manifestly  upon  a  principle 
elsewhere  often  applied ;  namely,  that  after  a  child  has 
attained  to  years  of  discretion  he  may  have,  in  case  of  contro- 
versy, a  voice  in  the  selection  of  his  own  custodian.  The  prac- 
tice is  to  give  the  child  the  right  to  elect  where  he  will  go,  if  he 
be  of  proper  age.  If  he  be  not  of  that  age,  and  want  of  discre- 
tion would  only  expose  him  to  dangers,  the  court  must  make 
an  order  for  placing  him  in  custody  of  the  suitable  person.^ 

It  is  held  in  England  that  an  agreement  by  which  the  father 

surrenders  custody  of  his  child  is  not  binding ;  and  that  he  is 

at  liberty  to  revoke  his  consent  afterwards,  and  obtain  the 

child  by  a  Avrit  of  habeas  corpus.^     The  policy  of  the  rule  is 

otherwise  in  some  Ameiican  States.     Thus,  there  is  a 

*  343    Massachusetts  case  *  where  a  child  had  been  given  up 

at  its  birth,  the  mother  liaving  then  died,  to  its  grand- 
parents, who  kept  it  for  thirteen  years,  at  their  own  expense, 
without  any  demand  made  by  the  father  for  its  restoration ; 
and,  under  these  circumstances,  the  court  refused  afterwards 
to  change  the  custody.^  The  general  doctrine  appears  to  us, 
on  the  whole,  to  be  this  :  that  public  policy  is  against  the 
permanent  transfer  of  the  natural  rights  of  a  parent ;  and 

1  Bennet  v.  Bennet,  2  Be.isl.  114. 

2  Forsyth  Custody,  93,  &c. ;  Rex  v.  Greenliill,  4  Ad.  &  El.  624.  Nine  or  ten 
years  of  age  has  been  considered  too  young ;  yet  mental  capacity  appears  the 
real  test ;  and  the  wishes  of  children  less  than  fourteen  have  been  regarded. 
See  Anon.,  2  Ves.  274;  Ex  parte  Hopkins,  2  P.  Wms.  152;  Curtis  v.  Curtis,  5 
Gray,  535 ;  People  v,  Mercein,  8  Paige,  47  ;  In  re  Goodenough,  19  Wis.  274  ; 
Regina  v.  Clarke,  7  EL  &  B.  186;  State  v.  Richardson,  40  N.  H.  272.  But 
according  to  Regina  v.  Howes,  3  Ell.  &  Ell.  332,  and  Mallinson  v.  Mallinson,  L. 
R.  1  P.  &  D.  221,  si,\teen  years  is  now  the  limit  adopted  in  English  courts  within 
which  the  child's  own  choice  as  to  custody  may  be  disregarded. 

3  Regina  v.  Smith,  16  E.  L.  &  Eq.  221. 

<  Pool  V.  Gott,  14  L.  R.  209,  before  Shaw,  C.  J.  And  see  In  re  Good- 
enough,  19  Wis.  274. 

[308] 


RIGHTS   OF  PARENTS.  *  343 

that  such  contracts  are  not  to  be  specifically  enforced,  unless 
in  the  admitted  exception  of  master  and  apprentice,  to  con- 
stitute which  relation  requires,  both  in  England  and  America, 
certain  formalities  ;  and  excepting  too  in  some  parts  of  the 
United  States,  where  the  principles  of  legal  adoption  are  part 
of  the  public  policy.  American  courts  hold  fast,  neverthe- 
less, to  the  true  interests  and  welfare  of  the  child  ;  and 
hence  the  contract  of  a  parent  unfit  to  have  custody  of  the 
child,  which  surrenders  that  child,  by  formal  instrument,  fair 
in  its  terms,  to  a  benevolent  institution,  for  the  purpose  of 
having  the  child  brought  up  in  a  good  family,  or  to  some 
other  suitable  third  party,  has  been  so  far  upheld  that  the 
child  is  suffered  to  remain  where  he  was  placed,  for  the  rea- 
son that  his  welfare  requires  it,  rather  than  be  returned  to 
the  parent  who  seeks  to  recover  custody  once  more.^ 

If  a  father,  after  making  an  assignment  of  the  services  or 
society  of  his  minor  child,  has  retaken  the  child  into  his  own 
keeping,  the  assignee's  only  remedy  on  his  own  behalf  (if  any 
he  have)  is  by  action  on  the  contract.^  An  adjudication  of 
the  appropriate  tribunal  on  the  question  of  the  custody  of  an 
infant  child,  brought  up  on  habeas  corpus^  may  be  jjleaded  as 
res  adjudicata.^ 

Nor  can  the   father,  under  the   common-law  rule,  divest 

himself,  even  by  contract  with  the  mother,  of  the  custody  of 

his  children,  though  he  allows  them  to  remain  with  her  for 

several  years.^     Yet  the  rule  in  some  States  is  more 

*344    *flexible.5 


1  2  Kent  Com.  205 ;  State  v.  Barrett,  45  N.  H.  15  ;  Dumain  v.  Gwynne, 
10  AHen,  270.  The  mother,  being  a  suitable  person,  was  allowed  to  recover  cus- 
tody, in  Wishard  v.  Medaris,  34  Ind.  168.  And  see  Beller  v.  Jones,  22  Ark.  92. 
Mayne  v.  Baldwin,  1  Halst.  Cli.  454 ;  People  v.  Mercein,  8  Paige  Ch.  67 ;  s.  c. 
3  Hill,  408 ;  State  v.  Libbey,  44  N.  H.  321 ;  State  v.  Scott,  30  N.  H.  274,  estab- 
lish that  a  parol  transfer  is  insufficient. 

■^  Farnsworth  v.  Richardson,  35  Me.  267.  And  see  Commonwealth  v. 
M'Keagy,  1  Ashm.  248 ;  Lowry  v.  Button,  Wright,  330. 

*  Mercein  v.  People,  25  Wend.  64. 

*  Torrington  v.  Norwich,  21  Conn.  543 ;  People  i'.  Mercein,  3  Hill,  408.  And 
see  Vansittart  u.  Vansittart,  4  Kay  &  J.  62 ;  Johnson  v.  Terry,  34  Conn.  259. 

5  Wodell  V.  Coggeshall,  2  Met.  89.     And  see  State  v.  Smith,  6  Me.  402. 
As  to  custody  in  matters  of  guardianship,  see  infra,  p.  448  et  stq. 

24  [  369  ] 


*  344  PARENT  AND   CHILD. 

Next  to  the  right  of  custody  of  infants  comes  that  of  the 
value  of  their  labor  and  services.  The  father,  says  Black- 
stone,  has  the  benefit  of  his  children's  labor  while  they  live 
with  him  and  are  maintained  by  him ;  and  this  is  no  more 
than  he  is  entitled  to  from  his  apprentices  or  servants.^  This 
right,  like  that  of  custody,  rests  upon  the  parental  duty  of 
maintenance,  and  furnishes  some  compensation  to  the  father 
for  his  own  services  rendered  the  child. 

Whether  this  right  remains  absolute  in  the  father  until  the 
child  has  attained  full  age  is  apparently  a  matter  of  doubt. 
It  is  certainly  perfect  while  the  period  of  the  child's  nurture 
continues.  But  if  this  is  all,  it  can  be  of  little  consequence, 
because  the  child's  labor  and  services  are  for  that  period  of 
little  or  no  value ;  nor  could  compensation  be  thus  afforded 
for  the  many  years  when  the  child  was  entirely  helpless.  AR 
will  admit  that  the  father's  right  continues  until  the  child 
reaches  fourteen.  And  since  the  father's  guardianship  by 
nature  extends  through  the  full  term  of  the  child's  minority ; 
since,  too,  he  may  by  will  place  a  testamentary  guardian  of 
his  own  choice  over  the  infant ;  since  it  is  reasonable  that  the 
law  should  set  off  years  of  later  usefulness  against  years  of 
earlier  helplessness ;  in  short,  since  the  age  of  majority  is 
fixed  as  the  period  when  an  infant  becomes  legally  emanci- 
j)ated  from  his  father's  control ;  we  may  fairly  assume 
*  345  that,  all  other  things  *  being  equal,  the  father  is  actu- 
ally entitled  to  the  value  of  his  child's  labor  and  ser- 
vices until  the  latter  becomes  of  age.  This  is  the  principle 
assumed  by  the  elementary  writers,^  and  in  most  of  the 
judicial  decisions;^  though  to  this  opinion  Chancellor  Kent 
appears  to  yield  a  somewhat  doubtful  assent.* 

But  the  duties  and  rights  of  parents  are  limited,  mutually 
dependent,  and  in  a  great  degree  correspondent  with  one 
another.  When  the  father  has  discharged  himself  of  the 
obligation  to  support  the  child,  or  has  obliged  the  child  to 

1  1  Bl.  Com.  453 ;  2  Kent  Com.  193. 

2  1  Bl.  Com.  453 ;  Reeve  Dom.  Rel.  290. 

3  Day  V.  Everett,  7  Mass.  145;  Benson  v.  Remington,  2  Mass.  113  ;  Plummer 
V.  Webb,  4  Mason,  380 ;  Gale  v.  Parrot,  1  N.  H.  28 ;  Nightingale  v.  Withington, 
15  Mass.  272 ;  Tlie  Etna,  Ware,  462. 

*  2  Kent  Com.  193. 

[370] 


RIGHTS   OF  PARENTS.  *  345 

support  himself,  our  courts  are  reluctant  to  admit  his  right  to 
the  child's  services.  Under  such  circumstances,  says  a  New 
Hampshire  court,  "  there  is  no  principle  but  that  of  slavery 
which  continues  his  right  to  receive  the  earnings  of  his  child's 
labor."  ^  Of  the  emancipation  of  children,  thus  or  otherwise 
secured,  we  shall  speak  hereafter.^ 

The  right  of  action  to  recover  for  the  services  of  a 
minor  is  *  then  presumed  to  be  in  his  father.^  And  it  *  346 
is  held  that  the  agreement  of  a  father,  merely  in  con- 
sideration of  natural  love  and  affection,  to  permit  a  minor 
son  who  lives  under  the  paternal  roof  as  a  member  of  the 
family  to  cultivate  a  crop  and  receive  its  proceeds,  is  revocable 
by  him  at  any  time  before  the  crop  is  gathered  and  disposed 
of  by  the  son.*  And  the  father  may  charge  services  rendered 
by  his  son,  as  a  master  for  his  apprentice  or  hired  laborer,  and 
consider  it  his  own  work.^  The  right  to  sue  for  ser\dces 
quantum  meruit  is  likewise  prima  facie  in  the  father.^  And 
if  a  child  being  of  full  age  chooses  to  remain  with  the  father, 
or  is  imbecile  and  needs  to  be  harbored  at  home,  the  relation 
may  continue  so  as  to  entitle  the  parent,  either  as  such  or  oh 
the  principle  of  master  and  servant,  to  recover  for  the  child's 
wages  in  the  same  manner.'' 

The  parent  may  voluntarily  relinquish  the  right  to  his 
child's  earnings,  and  may  permit  the  child  to  earn  for  himself, 
receive  his  earnings,  and  appropriate  them  at  pleasure.  And 
if  the  parent  authorize  a  third  person  to  employ  and  pay  the 
child,  payment  to  the  child  and  not  to  the  parent  will  be  a 
sufficient  discharge.  Such  an  agreement  may  be  in  express 
terms,  or  it  may  be  implied  from  circumstances.^     An  Ameri- 

^  Woods,  J.,  in  Jenness  v.  Emerson,  15  N.  H.  489.  But  in  this  case  the  prin- 
ciple seems  to  be  assumed  that  the  parent's  obhgation  to  support  and  his  riglit 
to  receive  wages  commence  together,  continue  togetlier,  and  ought  always  to 
terminate  together.  '^  See  i»fra,  p.  367  et  seq. 

3  Dufield  l:  Cross,  12  111.  397 ;  Shute  v.  Dorr,  5  Wend.  204.  See  Campbell 
V.  Cooper,  34  N.  H.  49.  *  Stovall  v.  Johnson,  17  Ala.  14. 

5  Brown  v.  Ramsay,  5  Dutch.  117.     But  see  Jones  v.  Buckley,  19  Ala.  604. 

6  Letts  V.  Brooks,  Hill  &  Den.  36  ;  Van  Dorn  v.  Young,  13  Bapb.  286. 

7  Brown  v.  Ramsay,  5  Dutch.  117  ;  Overseers  of  Alexandria  v.  Overseers  of 
Bethlehem,  1  Harr.  122 ;  infra,  p.  372. 

8  See  Campbell  v.  Cooper,  34  N.  H.  49  ;  Jenness  v.  Emerson,  15  N.  H.  489 ; 
Cloud  V.  Hamilton,  11  Humpli.  104;  Armstrong  i'.  McDonald,  10  Barb.  300. 

[371] 


*  346  PARENT  AND   CHILD. 

can  court  favorably  regards  contracts  of  this  nature,  for  the 
child's  benefit,  as  they  are  in  conformity  with  the  spirit  of 
free  institutions.^  And  a  New  York  statute  provides  that 
unless  the  parent  notifies  the  minor's  employer  within  thirty 
days  after  the  commencement  of  service  that  he  claims 

*  3-4:7    the  wages,  payment  to  *  the  minor  will  be  good.^    When 

the  parent  is  a  pauper  and  is  maintained  by  a  town, 
such  town  is  held  not  entitled  to  the  earnings  of  a  minor 
child  who  is  not  himself  a  pauper.^  The  father  may  by  his 
own  delay  forfeit  the  right  of  action  for  his  son's  wages  ;  as 
where  the  minor  agrees  to  work  at  certain  monthly  wages  to 
be  paid  to  himself,  and  the  father,  knowing  of  the  agreement, 
gives  no  notice  of  his  objection,  but  waits  until  the  work  has 
been  done  and  payment  is  made  to  the  child,  before  making  a 
demand.^  But  if  the  father  has  given  seasonable  notice  of 
his  dissent  and  demand  to  the  stranger  hiring  his  son.  the 
fact  that  the  son  continues  to  work  against  his  express  dis- 
sent, and  that  the  stranger  notified  him  to  come  and  take  his 
son  away  and  he  neglected  to  do  so,  will  not  preclude  him 
from  recovering  the  wages.^  Nor  does  the  fact  that  the  son 
has  agreed  with  his  father  to  buy  out  his  time  for  the  remain- 
der of  his  minority  by  jDaying  a  certain  sum  therefor,  which 
has  not  been  paid,  prevent  the  father  from  recovering  his 
wages  pending  the  payment  of  such  sum.^ 

"SVe  may  add  that  whatever  private  arrangement  may  exist 
between  the  father  and  his  son,  unless  it  is  brought  to  the 
employer's  notice  it  cannot  be  set  up  to  justify  payment  to  the 
minor  himself.  As  for  instance,  where  father  and  son  had 
secretly  agreed  that  the  latter  should  have  his  own  wages.'^ 
And  the  publication  by  a  parent  of  a  notice  of  his  son's 
emancipation  more  liberal  to  the  latter  than  the  actual  agree- 

1  Snediker  v.  Everingham,  3  Dutch.  143;  Cloud  v.  Hamilton,  11  Humph. 
104. 

^  N.  Y.  Laws,  1850,  p.  579  j  Herrick  v.  Fritcher,  47  Barb.  589.  And  see 
Everett  v.  Siierfey,  1  Iowa,  356. 

3  Jenness  v.  Emerson,  15  N.  H.  486. 

*  Smith  V.  Smith,  30  Conn.  111.  5  lb. 

6  Cahill  V.  Patterson,  30  Vt.  592.  And  see  Kauffelt  r.  Moderwell,  21  Penn. 
St.  222  ;  Cloud  v.  Hamilton,  11  Humph.  104;  Whiting  v.  Earle,  3  Pick.  201. 

•  Kauffelt  V.  Moderwell,  21  Penn.  St.  222. 

[372] 


RIGHTS    OF  PARENTS.  *  347 

ment  between  them,  will  not,  as  against  one  who  has  no 
knowledge  of  the  publication,  estop  the  father  from  insisting 
on  such  right  to  his  son's  wages  as  the  contract  between  them 
actually  gives.^  But  the  usage  of  father  and  son  may  be 
alleged.^ 

*  One  who  employs  the  minor  son  of  another  cannot  *  348 
be  liable  to  his  father  as  for  breach,  of  contract,  be- 
cause of  such  minor's  delinquencies.  Hence,  it  is  held,  that 
where  the  father  contracts  that  his  son  shall  work  for  a 
specified  time  and  price,  and  the  son  leaves  his  employer 
before  the  expiration  of  the  time,  against  his  father's  will, 
the  father  can  only  recover  for  the  time  of  actual  employ- 
ment, although  the  employer  assented  to  the  departure.^ 

Money  intrusted  to  a  minor  son  for  a  specific  purpose  and 
applied  by  him,  without  his  father's  assent,  in  compounding 
for  his  own  crime,  may  be  recovered  by  the  father  from  the 
receiver.  But  if  the  payment  was  assented  to  by  the  father, 
or  if  the  money  was  paid  solely  as  civil  damages  in  settlement 
of  a  trespass,  whether  with  or  without  such  assent,  the  father 
cannot  afterward  recover  it  from  the  receiver.'^  And  so,  too, 
if  a  father  place  his  minor  son  to  work  for  another,  for  no 
illegal  purpose,  and  without  knowledge  and  assent  as  to  his 
illegal  employment  in  fact,  he  is  still  entitled  to  compensation 
for  his  son's  services.  As  where  a  son  is  employed  by  another 
in  unlawfully  selKng  intoxicating  liquors,  the  father  being 
ignorant  of  the  nature  and  character  of  the  services  while 
they  were  being  performed.^ 

Wages  due  a  minor  seaman  belong  to  his  father.  And  pay- 
ment of  such  wages  to  the  son,  while  he  was  known  by  his 
employer  to  have  been  less  than  twenty-one  at  the  time  of 
making  the  contract,  furnishes  no  defence  to  an  action  by  the 
.father,  who  had  no  knowledge  of  his  hiring  until  after 
the  wages  *  were  earned.^  Nor  is  the  father  in  such  *  349 
case  affected  by  the  terms  of  the  shipping  articles,  be- 

1  Mason  v.  Hutcliins,  32  Vt.  780. 

^  Perlinau  v.  Phelps,  25  Vt.  478;  Canovar  v.  Cooper,  3  Barb.  115. 

3  Hennessy  v.  Stewart,  31  Vt.  486. 

4  Bumliam  v.  Holt,  14  N.  H.  367.  ^  Emery  v.  Kempton,  2  Gray,  257. 
6  White  V.  Henry,  24  Me.  531.     See  Weeks  v.  Holmes,  12  Cush.  215. 

[373] 


*  349  PARENT  AND  CHILD. 

cause  it  is  an  express  contract  which  as  against  him  the  son 
has  no  right  to  make  ;  he  can  claim  under  a  quantum  meruit 
for  the  value  of  the  services.  But  mercantile  custom  may- 
determine  certain  questions  as  to  the  remedy.^  As  to  enlist- 
ments in  the  army  or  navy  of  the  United  States,  the  laws 
contemplate  that  the  contract  is  personal  and  for  the  benefit 
of  the  infant ;  and  pay,  bounties,  and  prize-money  in' general, 
though  earned  under  State  laws,  are  held  to  belong  to  the 
son,  and  not  to  the  father.^ 

If  a  minor  son  abscond  from  his  father's  house,  and  enter 
the  ser\dce  of  one  who  for  his  labor  furnishes  the  infant  a 
reasonable  support,  the  parent  cannot  recover  the  son's  wages 
without  deducting  the  amount  of  the  expense  of  such  sup- 
port.*^ 

Where  a  father  furnishes  his  minor  child  with  clothing,  such 
clothing  is  the  property  of  the  father,  and  he  may  maintain 
an  action  for  the  loss  and  injury  thereof;  but  where  he  in- 
trusts the  child  with  a  sum  of  money  for  general  purposes, 
without  specific  directions  as  to  its  appropriation,  and  the 
child  buys  clothing  with  it,  such  clothing  is  not  the  property 
of  the  father.*  The  parent  may  give  articles  by  parol  to  his 
child,  and  afterwards  resume  them,  there  being  no  considera- 
tion.^ 

A  father  has  a  pecuniary  interest  in  the  life  of  a  minor 
child,  and  an  insurance  of  the  life  of  such  child  is  not  within 
the  rule  of  law  by  which  wager  policies  are  declared  void.^ 

At  the  common  law  a  mother  has  no  implied  right  to  the 
services  and  earnings  of  her  minor  child  ;  not  being  bound 
for  the  child's  maintenance.  Nor  have  her  rights  or  liabili- 
ties in  these  respects  been  usually  regarded  as  equivalent  to 
those  of  a  father,  even  where  she  is  the   only  surviving  par- 

1  Bisliop  V.  Shepherd,  23  Pick.  492. 

-  United  States  v.  Bainbridge,  1  Mason,  84  ;  Baker  v.  Baker,  41  Vt.  55 ; 
Banks  v.  Conant,  14  Allen,  497;  Mears  v.  Bickford,  55  Me.  528;  Carson  v. 
Watts,  3  Doug.  350 ;  Cadwell  v.  Sherman,  45  111.  348. 

3  Huntoon  v.  Hazelton,  20  N.  H.  388. 

*  Dickinson  v.  Winchester,  4  Cush.  114;  Parmelee  v.  Smith,  21  111.  620; 
Prentice  v.  Decker,  49  Barb.  21. 

5  Cranz  v.  Kroger,  22  111.  74  ;  Stovall  v.  Johnson,  17  Ala.  14. 

6  Mitchell  V.  Union,  &c.,  Ins.  Co.,  45  Me.  104. 

[374] 


RIGHTS  OF  PARENTS.  ♦  349 

ent.i  But  the  modern  tendency  in  this  country,  if  not  in 
England,  is  certainly  to  treat  a  mother's  rights  with  consider- 
able favor,  especially  if  she  be  a  widow ;  and  in  several  late 
cases  her  title  has  been  upheld  in  her  minor  child's  earnings, 
so  far  as  concerns  third  persons  ;  it  appearing  that  she  was 
the  surviving  parent,  and  that  the  child  had  no  probate  guar- 
dian and  was  not  emancipated.  Whether  such  title  on  her 
part  could  be  so  well  enforced  against  the  child's  own  consent 
and  to  the  extent  of  depriving  the  child  of  the  fruits  of  his 
own  toil,  may  be  reasonably  doubted.^ 

As  a  rule,  the  parent  has  no  rights  over  the  child's  general 
property.  The  law  treats  legacies,  gifts,  distributive  shares, 
and  the  like,  which  may  vest  in  a  person  during  minority,  as 
his  own  property  ;  and  the  modern  practice  is  to  require 
the  appointment  *  of  a  guardian  in  such  cases,  to  man-  *  350^ 
age  the  estate  until  the  child  comes  of  age.^  Under 
no  pretext  may  the  father  appropriate  such  funds  to  himself, 
or  use  them  to  pay  his  own  debts.  The  same  may  be  said 
of  the  child's  lands.  And  the  parent's  investment  of  his 
child's  money  for  the  latter's  benefit  will  be  protected  against 
all  creditors  of  the  former,  who  are  chargeable  with  notice  of 
the  child's  rights.* 

The  rights  of  parents  in  relation  to  the  custody  and  ser- 
vices of  their  children  may  be  enlarged,  restrained,  and  lim- 
ited, as  wisdom  or  policy  may  dictate,  unless  the  legislative 
power  is  limited  by  some  constitutional  prohibition.^  But  it 
is  held  that  the  State  has  no  constitutional  right  to  interfere 

'  1  Bl.  Com.  453  ;  Commonwealth  v.  Murray,  4  Binn.  487  ;  Riley  v.  Jameson, 
3  N.  H.  29  ;  People  v.  Mercein,  3  Hill,  400 ;  Morris  v.  Law,  4  Stew.  &  Port.  123 ; 
Pray  v.  Gorliam,  31  Me.  240;  Snediker  v.  Everinghani,  3  Dutch.  143.  See 
Clapp  V.  Greene,  10  Met.  439 ;  Campbell  v.  Campbell,  3  Stockt.  2G8. 

^  See  Matthewson  v.  Perry,  37  Conn.  43.5 ;  Hammond  v.  Corbett,  60  N.  H. 
501 ;  Hays  v.  Seward,  24  Ind.  352. 

*  Keeler  v.  Fassett,  21  Vt.  539;  Jackson  v.  Combs,  7  Cow.  36;  Miles  v.  Boy- 
den,  3  Pick.  213  ;  Cowell  v.  Daggett,  97  Mass.  434  ;  Kenningham  v.  M'Laughlin, 
3  Monr.  30.  And  see  Guardian  and  Ward,  infra.  But  see  Selden's  Appeal,  31 
Conn.  548. 

*  McLaurie  v.  Partlow,  53  111.  340. 

6  United  States  v.  Bainbridge,  1  Mason,  71,  per  Story,  J. ;  Bennet  v.  Bennet,  2 
Beasl.  114;  State  v.  Clottu,  33  Ind.  409. 

[375] 


♦350  PARENT  AND   CHILD. 

with  the  parent  and  take  charge  of  a  child's  education  and 
custody,  on  the  mere  allegation  that  he  is  "  destitute  of  proper 
parental  care,  and  is  growing  up  in  mendicancy,  ignorance, 
idleness,  and  vice."  ^ 

1  People  V.  Turner,  55  111.  280.  "  Sunday  laws  "  of  Vermont  do  not  prevent 
a  father  from  journeying  to  see  his  children  who  are  properly  absent  from  home. 
McClary  v.  Lowell,  44  Vt.  116. 


[376] 


PARENT'S  RIGHTS,  ETC.,  FOR  CHILD'S  INJURIES.     *  351 


*  CHAPTER    IV.  *351 

THE  parent's   rights   AND   LIABILITIES    FOR   THE   CHILD'S 
INJURIES    AND    FRAUDS. 

Two  distinct  topics  are  to  receive  treatment  in  the  present 
chapter,  under  the  head  of  the  parent's  rights  and  liabilities 
for  the  child's  injuries  and  frauds.  First,  the  parent's  right 
of  action  where  his  child  is  the  injured  party.  Second,  th^ 
parent's  liability  to  action  where  his  child  is  the  injuring 
party. 

First,  Where  a  child  suffers  wrong,  he  has  his  action  for 
the  personal  injury.  But  besides  this  the  parent  may  usually 
claim  indemnity  for  loss  of  his  child's  services,  to  which 
should  be  added  the  incidental  expenses  incurred  in  conse- 
quence of  the  injury.  Hence  arises  a  cause  of  action  in  the 
parent  per  quod,  the  foundation  of  which  is  a  loss  of  the 
child's  services. 

There  are  various  tortious  acts,  by  which  a  parent  may  be 
deprived  of  his  child's  services ;  and  the  law  is  generous  in 
securing  compensation  for  the  injury.  But  in  this  connection 
the  parental  relation  is  not  strictly  to  be  considered  ;  the  rule 
being  that  a  parent  has  no  remedy  for  an  injury  done  to  his 
child  by  the  wrongful  act  of  another,  unless  that  child  can  be 
treated  in  law  as  his  servant.^ 

This  is  laid  down  positively  as  the  English  rule.  Thus,  in 
a  case  where  tire  plaintiff  brought  an  action  against  the  de- 
fendant for  carelessly  driving  over  and  injuring  the  plaintiff's 
child,  so  that  the  plaintiff  was  obliged  to  expend  a  large  sura 
of  money  in  doctors  and  nurses,  and  it  appeared  that  the 

1  2  Hilliard  Torts,  518-529 ;  Addison  Torts,  697  ;  Grinnell  v.  Wells,  7  M.  & 
Gr.  1041  ;  Rogers  v.  Smith,  17  Ind.  323 ;  Hatfield  v.  Roper,  21  Wend.  615 ; 
Dennis  i-.  Clark,  2  Cush.  347. 

[377] 


*  351  PARENT  AND   CHILD. 

child  was  only  two  years  and  a  half  old,  and  incapable  of 
performing  any  act  of  service,  it  was  held  that  the  parent's 
action  was  not  maintainable.^  "  The  gist  of  the  action,"  it 
is  here  said,  "  is  the  loss  of  services,  and  therefore,  though  the 
relation  of  parent  and  child  subsists,  yet,  if  the  child  is 

*  352    incapable  of  performing  any  services,  the  foundation  of 

the  action  fails."  ^  And  it  is  doubtful  whether  the 
father,  as  such,  can  even  maintain  a  special  action  for  the 
expenses  necessarily  incurred  by  him  in  having  so  young  a 
child  cured  of  the  injury.^ 

In  this  country,  the  rule  appears  to  be  more  liberal  towards 
the  parent.  A  New  York  court  observes,  that  it  is  quite 
questionable  whether  the  father  can  be  deprived  of  his  right 
to  sue  for  the  loss  of  services,  on  account  of  the  child's  youth  ; 
though,  of  course,  the  right  may  be  forfeited  by  the  parent's 
culpable  negligence.*  And  in  Massachusetts  it  is  decided 
that  if  an  infant  child,  a  member  of  his  father's  household, 
and  too  young  to  be  capable  of  rendering  any  service  to  his 
father,  is  wounded  or  otherwise  injured  by  a  third  person,  or 
by  a  mischievous  animal  owned  by  a  third  person,  under  such 
circumstances  as  to  give  the  child  himself  an  action  against 
such  person,  for  the  personal  injury,  and  the  father  is  thereby 
necessarily  put  to  trouble  and  expense  in  the  care  and  cure 
of  the  child,  he  may  maintain  an  action  against  such  person 
for  indemnity.  The  court  laid  down  the  rule,  however,  with 
much  caution.^ 

Statutes  enlarging  the  rights  of  widows,  dependent  parents, 
and  others,  in  torts  occasioned  by  the  negligence  of  railroad 
corj)orations  and  other  common  carriers,  are  to  be  found  in 
England  and  America.  Under  such  statutes  it  is  frequently 
provided  that  where  a  child  is  thus  killed,  the  child's  admin- 
istrator may  sue  for  the  j^arent's  benefit.  The  English  stat- 
ute, known  as  Lord  Campbell's  Act,  9  &  10  Vict.  c.  93,  has 

1  Hall  V.  Hollander,  7  Dowl.  &  Ry.  133 ;  4  Barn.  &  Cress.  6G0. 

2  Bayley,  J.,  in  ib. 

3  See  Addison  Torts,  697  ;  Grinnell  v.  Wells,  8  Scott  N.  R.  741.  Contra,  Hall 
V.  Hollander,  supra. 

*  Hartfield  v.  Roper,  21  Wend.  615. 
5  Dennis  v.  Clark,  2  Cush.  347. 
[  378] 


PARENT'S  RIGHTS,  ETC.,  FOR  CHILD'S  INJURIES.     *  352 

given  rise  to  suits  of  tliis  kind  ;  but  the  rule  is  laid  do^vn  that 
such  actions  are-  not  maintainable  without  some  evidence  of 
actual  pecuniary  damage,  some  loss  of  service.^  But  the  dam- 
ages are  to  be  calculated  in  reference  to  a  reasonable 
expectation  of  pecuniary  benefit,  as  of  *  right  or  other-  *  353 
wise,  from  the  continuance  of  the  life  ;  and  where  the 
parent  is  old  and  infirm,  and  the  son  had  been  earning  good 
wages,  though  not  at  the  precise  period  of  death,  such  cir- 
cumstances are  to  be  favorably'  considered  in  estimating  the 
amount  of  damages.^  And  since,  as  we  have  seen,  the  par- 
ent's right  of  suit  is  founded  upon  the  loss  of  a  child's  ser- 
vices, there  are  circumstances  under  which  such  suits  might 
be  brought,  notwithstanding  the  child  was  of  age,  contrar}^  to 
the  general  rule.^ 

Trespass  lies  per  quod  for  loss  of  services  occasioned  by 
assault  and  battery  of  the  child.'^  The  true  question  here, 
as  elsewhere,  seems  to  be,  whether  a  loss  of  service  was  con- 
sequent upon  the  injury.  For  assault  and  battery  on  the 
high  seas,  there  is  likewise  a  remedy  in  admiralty.^ 

If  the  parent  has  finally  relinquished  his  right  to  the  ser- 
vices of  his  child,  he  cannot  claim  such  damages  ;  they  belong 
to  the  master,  if  any  one  ;  but  this  question  of  relinquishment 
is  for  determination  on  the  usual  principles.^  And  where  an 
injury  is  inflicted  upon  a  child  while  living  with  and  in  the 
service  of  another,  the  proper  remedy  of  the  father  is  trespass 
on  the  case  for  the  reversion,  as  it  were,  of  the  child's  ser- 
vices ;  as  where  a  person  who  hired  the  son  of  another,  put 
him  upon  a  vicious  horse,  so  that  he  was  thrown  and  had  his 
leg  broken.'^     And  the  parent's  negligence  may,  in  certain 

I  Duckworth  v.  Johnson,  4  Hurl.  &  Nor.  653.  See  further,  Frank  v.  New- 
Orleans,  &c.,  K.  R.  Co.,  20  La.  Ann.  25 ;  Pennsylvania  R.  R.  Co.  v.  Bantoni,  54 
Penn.  St.  495. 

'i  lb.  ;  Franklin  v.  South-Eastern  R.  R.  Co.,  3  Hurl.  &  Nor.  211. 

3  Pennsylvania  R.  R.  Co.  v.  Keller,  67  Penn.  St.  300;  Mercer  v.  Jackson,  54 
111.  397.     And  see  infra,  p.  358. 

*  Hammer  v.  Pierce,  5  Harrins;.  171 ;  Hoover  u.  Heim,  7  Watts,  62  ;  Plummer 
V.  Webb,  Ware,  75  ;  Cowden  v.  Wright,  24  Wend.  429.  But  as  to  indictments, 
see  Hearst  v.  Sybert,  Clieves,  177. 

5  Plummer  v.  Webb,  Ware,  75.  6  Arnold  v.  Norton,  25  Conn.  92. 

■J  Wilt  V.  Vickers,  8  Watts,  227. 

[379] 


*  353  PARENT   AND    CHILD. 

cases,  defeat  his  own  right  of  action  for  loss  of  service  alto- 
gether, as  Avell  as  that  of  the  child  for  the  injury  suffered.^ 

The  death  of  the  child,  after  the  injury,  though  it  may,  on 
familiar  principles,  terminate  the  right  to  sue  for  the  child's 
tort,  does  not  affect  the  parent's  consequential  right  of  action. 
The  death  occurring  before  the  commencement  of  the  suit,  if 
in  consequence  of  the  injury,  only  aggravates  the  parent's 
remedy  ;  if  the  death  is  occasioned  by  other  causes,  it  leaves 
the  remedy  as  it  stood  before.^ 

*  354        *  Every  person  who  knowingly  and  designedly  inter- 

rupts the  relation  subsisting  between  parent  and  child, 
by  procuring  the  child  to  depart  from  the  parent's  service,  or 
by  harboring  and  keeping  him  after  he  has  quitted  his  home, 
commits  a  wrongful  act,  for  which  he  is  responsible  to  the 
parent.  The  offence  is  known  as  enticement,  and  this  ap- 
plies to  the  relation  of  master  and  servant.  In  such  cases, 
again,  the  parent  sues  on  a  principle  analogous  to  that  of  the 
master  :  namely,  because  of  an  alleged  loss  of  service  ;  or  pos- 
sibly in  trespass  vi  et  annis  upon  the  more  reasonable  allega- 
tion of  loss  of  the  child's  society.^  And  this  action  will  lie 
on  behalf  of  the  mother  after  the  father's  death.*  The  quo 
animo  of  the  defendant  in  such  suits  is  always  material.  To 
afford  shelter  is  one  thing  ;  to  encourage  filial  disobedience 
another.  The  mere  employment  of  a  runaway  child  does  not 
amount  to  enticement.^  But  where  it  appears  that  the  defend- 
ant, knowing  that  the  son  had  absconded  from  his  father, 
boarded  him  in  his  family  and  allowed  him  to  work  on  his 
farm  as  he  pleased,  doing  this  with  the  intention  of  aiding  or 
encouraging,  or  with  the  knowledge  that  it  aids  and  encour- 
ages the  son  to  keep  away  from  the  father,  he  is  liable  to  this 
action.^ 

1  See  infra,  p.  571  ;  Glassey  v.  Hestonville,  &c.,  R.  R.  Co.,  57  Penn.  St.  172. 

2  Plummer  v.  Webb,  Ware,  80;  Winsmore  v.  Greenbank,  Bull.  N.  P.  78;  Ihl 
V.  Street  R.  R.  Co.,  47  N.  Y.  317. 

3  Lumley  v.  Gye,  2  El.  &  B.  224  ;  Kirkpatrick  v.  Lockhart,  2  Brev.  276  ;  1 
Woodes.  Lee.  451  ;  Sargent  v.  Mathewson,  38  N.  H.  54  ;  3  Bl.  Com.  140. 

*  Jones  V.  Tevis,  4  Litt.  25. 

5  Keane  v.  Boycott,  2  H.  Bl.  511 ;  Butterfield  v.  Ashley,  6  Cush.  249. 

c  Sargent  v.  Mathewson,  38  N.  H.  54 ;  Everett  v.  Sherfey,  1  Iowa,  356. 

[380  ] 


PARENT'S   RIGHTS,  ETC.,  FOR   CHILD'S  INJURIES.      *  354 

A  parent  may  maintain  a  libel  in  the  admiralty  for  the 
wrongful  abduction  of  his  child,  a  minor,  and  carrying  him 
beyond  the  seas.^  Abduction  is  an  offence  similar  to  entice- 
ment, but  implying  the  use  of  force  rather  than  persuasion. 
Where  father  and  mother  live  apart,  the  mother's  assent  to 
the  child's  enlistment  as  a  sailor  may  sometimes  affect  the 
father's  remedies.^  But  some  parental  ratification  of  the 
son's  contract  of  enlistment  should  be  shown  in  order  to 
defeat  the  parent's  right  of  action ;  and  similar  principles 
apply  in  the  case  of  an  army  enlistment ;  there  being,  doubt- 
less, cases  where  a  parent  may  sue  one  at  law  for  unlawfully 
harboring  and  concealing  his  young  child,  and  so  inducing 
him  to  enlist  as  a  soldier.^ 

*  There  must  be  a  reasonable  limit  to  suits  by  the  *  355 
parent  for  loss  of  his  child's  society  and  services. 
Hence  it  is  now  well  settled  in  this  country  that  the  parent 
cannot  sue  for  enticing  his  child  into  a  marriage  against  the 
parent's  consent.*  For  a  forcible  abduction,  resulting  in  an 
imperfect  marriage,  and  aggravated  cases  of  a  like  nature, 
where,  in  fact,  there  is  not  a  valid  union,  there  might  be  a 
remedy.  So  the  marriage  statutes  not  unfrequently  provide 
penalties  to  be  meted  out  to  offenders,  who  aid  and  encourage 
infants  in  evading  statutes  requiring  the  consent  of  parents 
or  guardians.  But  for  drawing  children  of  suitable  age  into 
a  marriage  which  pleases  themselves,  the  law  affords  no  re- 
dress ;  nor  can  it  punish  for  the  sake  of  parental  discipline. 
And  even  though  the  match  be  unhappy,  yet  marriage  must 
supersede  the  filial  relation.^  Nor  can  a  parent  sue  a  school 
teacher,  school  trustees,  or  others,  for  excluding  his  children 

1  Steele  v.  Tliacher,  Ware,  91 ;  Plummer  v.  Webb,  4  Mason,  380.  See  Cut- 
ting V.  Seabury,  Sprague,  522;  Weeks  v.  Holmes,  12  Cush.  215. 

2  Wodell  I'.  Coggeshall,  2  Met.  89.  And  see  Worcester  v.  Marcbant,  14 
Pick.  510. 

'  Caughey  w.  Smith,  47  N.  Y.  244. 

*  Jones  V.  Tevis,  4  Litt.  25 ;  Hervcy  v.  Moseley,  7  Gray,  479 ;  Goodwin  v. 
Thompson,  2  Greene  (Iowa),  329.     But  see  Hills  i;.  Hobert,  2  Root,  48. 

^  Marrying  a  parent's  son  and  heir  was  a  civil  injury  at  common  law  during 
the  continuance  of  the  military  tenures,  for  thereby  the  parent  lost  the  value  of 
his  child's  marriage  ;  but  this  injury  ceased  long  ago,  with  the  right  on  wliich  it 
was  founded.     See  3  Bl.  Com.  140,  and  notes. 

[381] 


*355  PARENT   AND   CHILD. 

from  school ;  the  right  of  action,  if  any,  being  in  the  child  ;  ^ 
and  there  being  no  real  loss  of  services  consequent  upon  the 
affront.  In  short,  the  general  rule  is  to  place  all  actions  by 
the  parent  on  the  sole  ground  of  value  of  the  lost  services 
of  the  child,  who  is  regarded  as  a  servant  for  the  purpose  of 
the  suit ;  not  to  punish,  for  the  sake  of  the  father,  those  who 
wrong  the  child.^  And  the  most  liberal  view  of  the  subject 
indicated  by  American  courts,  is  to  regard  the  parent  as  in  a 
measure  entitled  to  the  society  and  solace  of  his  own  chil- 
dren ;  though  this  reasonable  position  is  not  clearly  supported 
by  authority. 

Even  in  seduction  suits  the  same  technical  principle 
*  356  is  rather  *  absurdly,  though  not  always  unkindly,  ap- 
plied. The  foundation  of  the  action  by  a  father  to 
recover  damages  against  the  wrong-doer  for  the  seduction  of 
his  daughter,  has  been  uniformly  placed,  from  the  earliest 
times,  not  upon  the  seduction  itself,  which  is  the  wrongful 
act  of  the  defendant,  but  upon  the  loss  of  service  of  the 
daughter,  in  which  he  is  supposed  to  have  a  legal  right  or 
interest.^  And  without  some  allegation  and  proof  of  loss  of 
service  the  action  is  not  maintainable. 

Thus  where  it  was  alleged  by  the  father  that  his  daughter 
was  a  poor  person,  maintaining  herself  by  her  labor  and  per- 
sonal services,  and  not  of  sufficient  ability  to  maintain  herself 
otherwise ;  and  that  by  being  debauched  she  became  unable 
to  work,  and  had  to  be  maintained  by  her  father  at  consider- 
able expense  ;  all  this  was  held  insufficient  allegation  of  loss 
of  service.^     So  it  is  not  enough  to  show  that  the  father  had 

1  Spear  v.  Cummings,  23  Pick.  224;  Donahoe  v.  Richards,  38  Me.  376; 
Boyd  V.  Blaisdell,  15  Ind.  73 ;  Stephenson  v.  Hall,  U  Barb.  222.  Contra,  Roe  v. 
Deming,  21  Ohio  St.  666. 

■i  Hall  V.  Hollander,  4  B.  &  C.  660;  Grinnell  v.  Wells,  7  M.  &  Gr.  1033; 
Eager  v.  Grim  wood,  1  Exch.  61.  But  see  dictum  in  Stephenson  v.  Hall,  14  Barb. 
222. 

8  Grinnell  v.  Wells,  7  M.  &  Gr.  1033  ;  Eager  v.  Grinowood,  1  Exch.  61 ;  Van 
Horn  V.  Freeman,  1  Halst.  322 ;  McDaniel  v.  Edward,  7  Ired.  408 ;  Sutton  v. 
Huffman,  32  N.  J.  68  ;  Knight  v.  Wilcox,  14  N.  Y.  413;  Bartley  d.  Richtmeyer, 
4  Comst.  38. 

*  Grinnell  v.  Wells,  ib. 

[  382] 


PARENT'S  RIGHTS,   ETC.,  FOR   CHILD'S  INJURIES.      *  356 

apprenticed  his  daughter  to  the  defendant  to  learn  millinery, 
and  had  paid  him  a  large  sum  of  money  to  instruct  her  in  a 
trade,  but  that  the  defendant  seduced  her  and  rendered  her 
unable,  by  reason  of  pregnancy,  to  learn  the  trade.^  But  the 
evidence  of  service  may  be  very  slight ;  and  the  making  tea, 
milking  cows,  or  doing  any  household  work  at  the  command 
of  the  parent,  is  esteemed  quite  sufficient  to  constitute  the 
relationship  of  master  and  servant,  when  the  girl  is  residing 
with  her  father  and  mother  ;  2  and  the  right  of  action  once 
clear,  damages  far  in  excess  of  the  loss  of  service  are  recov- 
erable. Thus  will  justice,  seeing  the  goal  clearly,  drive 
straight  towards  it,  regardless  of  obstructions ;  either  finding 
an  avenue  or  making  one. 

But  to  render  this  action  maintainable,  the  parent 
must  have  *  a  genuine  right  to  his  daughter's  services  ;  *  357 
however  slight  the  services  which  may  be  exacted.  If 
therefore  the  daughter,  at  the  time  she  was  seduced,  was  at 
the  head  of  an  estabhshment  of  her  own,  and  her  father  was 
living  with  her  as  a  visitor  in  her  own  house,  she  cannot  be 
treated  as  holding  the  subordinate  position  of  a  servant,  and 
the  action  will  not  lie.^  Nor  can  a  parent  sue,  where  the 
child  is  really  in  the  service  of  another,  and,  by  permission 
of  her  mistress,  comes  home  to  render  slight  assistance  from 
time  to  time.*  Nor  where  the  child  is  seduced  while  in  the 
service  of  another  and  then  returns  home  and  remains  there 
in  a  state  of  pregnancy.^  But  if  she  is  away  only  on  a  tem- 
porary visit,  and  still  forms  part  of  her  father's  family,  and 
makes  herself  serviceable  to  him  while  she  is  at  home,  such 
temporary  absence  constitutes  no  impediment. to  an  action  by 
the  father  for  damages.^  In  a  word,  the  question  is  whether 
there  was  at  the  time  the  injury  was  committed  a  bona  fide 

1  Harris  v.  Butler,  2  M.  &  W.  639. 

2  1  Addison  Torta,  698,  701 ;  Bennett  i'.  Allcott,  2  T.  R.  166 ;  Tiiompson  v. 
Ross,  6  Hurl.  &  Nor.  16  ;  Manvell  v.  Thomson,  2  Car.  &  P.  303 ;  Vossel  v.  Cole, 
10  Mis.  634  ;  2  Kent  Com.  205,  last  ed.,  and  cases  cited. 

3  Manley  v.  Field,  7  C.  B.  n.  s.  96. 

4  Thompson  v.  Ross,  6  Hurl.  &  Nor.  16  ;  Hedges  v.  Tagg,  L.  R.  7  Ex.  283; 
Blaymire  v.  Haley,  6  M.  &  W.  66.  »  Davies  v.  Williams,  10  Q.  B.  726. 

e  Griffiths  v.  Teetgen,  15  C.  B.  344;  28  E.  L.  &  Eq.  871.  See  further,  1 
Addison  Torts,  698;  Evans  v.  Walton,  L.  R.  2  C.  P.  616. 

[383] 


*357  PARENT   AND    CHILD. 

relation  of   constructive  service  between  parent  and  child, 
which  suffered  by  the  wrongful  act  of  the  defendant. 

There  is  a  late  New  Jersey  case  where  it  appeared  in  evi- 
dence that  the  daughter  was  about  twenty-two  years  of  age 
when  seduced,  and  was  living  a  part  of  the  time  with  her 
brother,  who  occu]3ied  a  farm  about  a  mile  from  her  father, 
and  part  of  the  time  with  her  father.  While  the  rule  was 
fully  approved  that  the  father  and  daughter  must  have  stood 
in  the  relation  of  master  and  servant  at  the  time  the  injury 
was  committed,  it  was  further  held  that  it  was  not  necessary 
that  the  daughter  should  be  in  the  actual  service  of  the  father 
at  the  time  of  the  seduction,  if  the  relation  of  master  and 
servant  then  existed  between  them  ;  in  other  words,  that  the 
service  rendered  need  not  be  house  service,  nor  service  from 

day  to  day,  but  that  any  accustomed  service  lost  by  the 
*  358    injury  would  sustain  the  action.^    *  So  in  a  very  recent 

English  case  the  plaintiff's  daughter,  being  under  age, 
left  his  house  and  went  into  service.  After  nearly  a  month 
the  master  dismissed  her  at  a  day's  notice,  and  the  next  day, 
on  her  way  home  to  her  father's  house,  the  defendant  seduced 
her.  It  was  held  that  as  soon  as  the  real  service  was  termi- 
nated by  the  master,  whether  rightfully  or  wrongfully,  the  girl 
intending  to  return  home,  the  right  of  the  father  to  her  ser- 
vices revived,  and  that  there  was,  therefore,  sufficient  evi- 
dence of  service  to  maintain  an  action  for  the  seduction  .^ 
This,  the  court  admitted,  was  carrying  the  doctrine  of  con- 
structive service  very  far.  "  The  action,  no  doubt,  is  founded 
on  the  special  ground  of  loss  of  service  (this  is  not  very  cred- 
itable, perhaps,  to  our  law),  but  the  action  is  substantially 
for  the  aggravated  injur}-  that  the  father  has  sustained  in  the 

1  Sutton  V.  Huffman,  32  N.  J.  58.  And  see  Greenwood  v.  Greenwood,  28  Md. 
870 ;  Emery  v.  Gowen,  4  Me.  33.  In  tliese  and  some  other  cases,  there  is  a 
manifest  tendency  to  exclude  a  presumption  of  emancipation,  so  as  to  leave  the 
parent's  remedy  unimpaired.  The  rule  in  Virginia  is  more  strict.  Lee  v. 
Hodges,  13  Gratt.  726.  In  New  York,  tiie  doctrine  of  Martin  v.  Payne,  9  Johns. 
387,  and  other  cases,  led  to  much  confusion,  by  permitting  suits  to  be  brought 
where  there  was  in  reality  no  loss  of  service  sustained.  But  in  the  later  cases 
the  courts  have  returned  to  the  strictness  of  the  English  rule.  Bartley  v.  Richt- 
meyer,  4  Comst.  38.    And  cf.  earlier  and  later  notes  to  2  Kent  Com.  205. 

•■i  Terry  v.  Hutchinson,  L.  R.  3  Q.  B.  599  (1868).  And  see  Evans  v.  Walton, 
L.  R.  2  C.  P.  615. 

[384] 


PARENT'S  RIGHTS,  ETC.,  FOR  CHILD'S  INJURIES.    *  358 

seduction  of  the  child."  ^  These  cases  illustrate  the  generous 
disposition  with  which  the  courts  uphold  a  parent's  right  of 
action  in  seduction  suits  ;  and  it  is  here  probably  that  the 
bounds  should  be  placed  to  this  rule  of  a  daughter's  service 
entitling  the  parent  to  sue  for  damages. 

It  is  not  necessary  that  the  daughter  should  be  under  ao-e 
in  order  that  the  parent  may  maintain  the  action  for  seduc- 
tion. The  important  question  is,  whether  emancipation  in 
fact  had  taken  place  at  the  time  of  the  injury  ;  for  if  the  re- 
lation of  master  and  servant  exists  between  the  father  and 
his  grown-up  daughter,  however  this  relation  may  have  been 
created,  the  right  of  action  is  complete.^  And  even  where  a 
married  woman  separated  from  her  husband,  returned  to  her 
father's  house  and  lived  with  him,  performing  various  acts  of 
service,  it  was  held  that  as  against  a  wrong-doer  it  was  suffi- 
cient to  prove  that  there  was  the  relationship  of  master 
and  servant  de  *  facto?  So  where  one  stands  in  loco  *  359. 
parentis,  he  may  recover  damages,  as  an  actual  parent 
would  ;  as  in  the  case  of  an  orphan  living  with  a  relation,  or 
a  friend  and  benefactor,  and  rendering  such  domestic  attend- 
ance and  obedience  as  is  usually  rendered  by  a  daughter  to 
her  father.4  But  the  parent  cannot  maintain  an  action  for 
the  seduction  of  a  daughter  over  twenty-one  and  working  out 
on  her  own  account.^  And  \^hile  as  surviving  parent  the 
mother  might  sue  for  her  daughter's  seduction  under  circum- 
stances showing  service  rendered  her,  it  is  held  that  a  mother 
cannot  maintain  an  action  for  the  seduction  of  her  daughter 
while  the  father  was  alive,  though  the  illicit  offspring  was  not 
born  until  after  the  father's  death.^ 

The  wrongful  act  for  which  the  parent  sues  must  be  the 

1  Per  Cockburn,  C.  J.,  in  Terry  v.  Hutchinson,  L.  R.  3  Q.  B.  5U9  (1808). 
-  1  Addison   Torts,   700;  Sutton  v.  Huffman,   32  N.   J.  68;    Greenwood  i-. 
Greenwood,  ^8  Md.  370 ;  Stevenson  v.  Belknap,  6  Iowa,  97. 

*  Harper  v.  Luffkin,  7  B.  &  C.  387. 

*  1  Addison  Torts,  700 ;  Irwin  v.  Dearnian,  11  East,  23 ;  Edmondson  v.  Macliell, 
2  T.  R.  4;  Williams  v.  Hutcliinson,  3  Comst.  312;  Maguinay  v.  Saudek,  5 
Sneed,  146;  Ball  v.  Bruce,  21  111.  161. 

5  George  i-.  Van  Horn,  9  Barb.  533. 

«  Vossel  V.  Cole,  10  Mis.  634;  Gray  v.  Durland,  60  Barb.  100.  Statutes  en- 
larging the  rights  of  married  women  sometimes  extend  the  mother's  action. 
Badgley  v.  Decker,  44  Barb.  677. 

25  ■[  385  J 


*  359  PARENT  AND   CHILD. 

natural  and  direct  cause  of  the  injury  for  which  damages  are 
sought,  and  the  damages  recoverable  its  necessary  and  proxi- 
mate consequence.  To  this  principle  is  to  be  referred  a  curi- 
ous case  in  New  York.^  But  mental  illness  directly  resulting 
from  the  injury  is,  of  itself,  sufficient  to  support  an  action  for 
loss  of  services  ;  and  such  a  suit  might  be  maintainable,  not- 
withstanding seduction  was  followed  neither  by  pregnancy 
nor  sexual  disease. ^ 

Where  a  person  hires  a  girl  as  a  servant  for  the  purpose  of 
withdrawing  her  from  her  family  and  seducing  her,  this  is 
fraud,  and  the  parent's  right  of  action  is  not  thereby  forfeited  ; 
for  in  such  a  case  the  new  relation  of  master  and-  servant  is 
not  bona  fide  created,  and  the  former  relation  may  be  held  to 
have  continued.^ 

As  to  the  amount  of  damages,  cases  of  seduction  stand  on 
a  peculiar  footing.     The  ground  of  action  is  the  loss  of  ser- 
vices ;  yet  the  rule  is  well  established  that  neither  this 

*  360    nor  the  *  medical  expenses  are  all  that  the  parent  can 

recover.  Lord  EUenborough,  in  his  day,  declared  the 
principle  inveterate,  and  not  to  be  shaken,  that,  in  estimating 
damages,  the  jury  might  go  beyond  the  mere  loss  of  service, 
and  give  damages  for  the  distress  and  anxiety  of  mind  which 
the  parent  had  sustained  in  being  deprived  of  the  society  and 
comfort  of  his  child.^  So  must  the  situation  in  life  and  cir- 
cumstances of  the  parties  be  taken  into  consideration.^  "  In 
point  of  form,"  observes  Lord  Eldon,  "  the  action  only  pur- 
ports to  give  a  recompense  for  loss  of  service  ;  but  we  cannot 
shut  our  eyes  to  the  fact  that  it  is  an  action  brought  by  a 
parent  for  an  injury  to  her  child,  and  the  jury  may  take  into 
their  consideration  all  that  she  can  feel  from  the  nature  of 

1  Knight  V.  Wilcox,  14  N.  Y.  413.  See  Eager  v.  Grimwood,  1  Exch.  61 ; 
Boyle  V.  Brandon,  13  M.  &  W.  738  ;  Reddie  v.  Scoolt,  Peake,  240  ;  1  Addison 
Torts,  701,  as  to  the  various  grounds  of  defence  in  seduction  suits. 

-  Manvell  v.  Thompson,  2  Car.  &  P.  303 ;  Seager  r.  Sligerland,  2  Caines, 
219 ;  Abrahams  v.  Kidney,  104  Mass.  222. 

3  Speight  V.  Oliviera,  2  Stark.  435;  2  Kent  Com.  205  ;  1  Addison  Torts,  699; 
Dain  v.  Wyckoff,  18  N.  Y.  45. 

4  Irwin  I).  Dearman,  11  East,  23. 

*  Andrews  v.  Askey,  8  Car.  &  P.  9. 

[386] 


PARENT'S  RIGHTS,  ETC.,  FOR   CHILD'S  INJURIES.    *  360 

the  loss.  They  may  look  upon  her  as  a  parent  losing  the 
comfort,  as  well  as  the  service,  of  her  daughter,  in  whose 
virtue  she  can  feel  no  consolation ;  and  as  the  parent  of  other 
children  whose  morals  may  be  corrupted  by  her  example."  ^ 
These  principles  are  applied  both  in  England  and  America. 
In  other  suits,  such  as  for  enticement,  the  measure  of 
damages  applied  is  liberal,  though  the  rule  is  somewhat  con- 
flicting in  different  States.  It  is  a  general  principle,  that 
where  servants  are  enticed  away,  or  forcibly  abducted,  the 
jury  may  award  ample  compensation  for  all  the  damage  re- 
sulting from  the  wrongful  act.^  A  parent  can  recover  dam- 
ages for  the  prospective  value  of  the  services  of  a  young 
child  injured  or  killed  by  an  act  of  negligence.^  Med- 
ical expenses  for  the  care  *  and  cure  of  the  child  are,  *  361 
of  course,  recoverable.  And  even  the  expense  of  the 
mother's  sickness  which  was  caused,  in  an  extreme  case,  by 
the  shock  to  her  feelings,  has  been  treated  as  a  proper  item 
of  special  damage.*  So,  it  would  seem,  are  the  costs  of 
prosecuting  the  suit.^  But  the  negligence  of^  parents,  having 
the  care  of  a  young  child,  will  defeat  their  right  of  action,  if 
not  that  on  the  child's  own  behalf.^  Nor  can  the  parent  re- 
cover for  lacerated  feelings,  as  well  as  for  other  injuries  to  the 
child,  as  in  seduction  suits."    But  local  statutes  will  sometimes 

'  Bedford  v.  M'Kowl,  3  Esp.  120 ;  Robinson  v.  Burton,  5  Harring.  335 ;  Klop- 
fer  V.  Bromme,  26  Wis.  372;  Pence  v.  Dozier,  7  Bush,  133;  Dain  v.  Wyckolf, 
18  N.  Y.  45.  Seduction  may  be  a  statutory  misdemeanor.  State  r.  Bierce,  27 
Conn.  319.  See  further  on  this  subject,  Wliite  v.  Campbell,  13  Gratt.  573  ;  Sel- 
lars  V.  Kinder,  1  Head,  134  ;  Bracy  v.  Kibbe,  31  Barb.  273  ;  1  Addison  Torts, 
703  ;  Eager  v.  Grimwood,  1  Exch.  61 ;  Verry  v.  Watkins,  7  Car.  &  P.  308 ; 
Richardson  v.  Fonts,  11  Ind.  466;  Reed  v.  Williams,  5  Sneed,  580;  Bolton  v. 
Miller,  6  Ind.  262;  Zerfing  v.  Mourer,  2  Greene  (Iowa),  520 ;  Vossel  v.  Cole,  10 
Mis.  634  ;  2  Kent  Com.  205,  last  ed. 

2  Gunter  v.  Astor,  4  Moore,  15 ;  1  Addison  Torts,  704  ;  Lumley  v.  Gyc,  2  El. 
&  Bl.  216  ;  Magee  v.  Holland,  3  Dutch.  86. 

3  Supra,  p.  353;  Drew  v.  Sixth  Avenue  R.  R.  Co.,  26  N.  Y.  49;  Ford  v. 
Monroe,  20  Wend.  210;  Hoover  v.  Heim,  7  Watts,  62;  Franklin  v.  South- 
Eastern  R.  R.  Co.,  3  Hurl.  &  Nor.  211.  But  see  Williams  v.  Hutchinson, 
3  Comst.  314. 

*  Ford  V.  Monroe,  20  Wend.  210.  *  Wilt  v.  Vickers,  8  Watts,  227. 

6  Kreig  v.  Wells,  1  E.  D.  Smith,  74 ;  Glassey  v.  Ilestonville,  &c.,  R.  R.  Co., 
57  Penn.  St.  172. 

"  Penn.  R.  R.  Co.  v.  Kelly,  31  Penn.  St.  372 ;  Cowden  v.  Wright,  24  Wend. 
429. 

[387] 


*  361  PARENT  AND   CHILD. 

affect  the  question  of  damages  here  as  well  as  the  right  of 
action  itseK.^ 

Second.  As  to  the  parent's  liability  to  action,  where  the 
child  is  the  injuring  party.  The  question  is  sometimes  asked, 
how  far  a  father  is  responsible,  in  damages,  for  the  torts  and 
frauds  of  his  infant  child.  We  have  already  seen  that  the 
husband's  responsibility  for  his  wife's  injuries  at  the  common 
law  is  founded  upon  his  right,  by  marriage,  to  her  entire  prop- 
erty. Very  different  is  the  relation  of  parent  and  child, 
where,  it  is  now  plain,  the  father  has  little  more  than  the  right 
to  claim  his  child's  wages,  so  far  as  the  infant's  property  is 
concerned.  Yet  some  have  been  misled  into  the  belief  that 
the  two  cases  are  entirely  analogous  ;  and  they  would  hold 
the  father  liable  for  his  son's  wrongful  acts,  as  a  husband 
for  the  wife's.  It  is  held  in  Pennsylvania,  that  the  father  may 
be  sued  in  trespass  for  an  injury  committed  by  his  son,  when 
they  ride  together  in  the  father's  team,  and  the  act  is  com- 
mitted in  the  latter's  presence.'^  Whether  the  principle  can 
be  safely  carried  farther,  is  extremely  doubtful.  In  Missouri, 
on  the  other  hand,  and  with  better  reason,  it  is  decided  that 
a  father  is  not  responsible  for  an  assault  committed  by  his 
infant  son,  without  his  sanction  ;  not  even  though  the  child 
was  known  by  him  to  be  of  a  vicious  temper.^  The  same 
rule,  with   more   caution,  has  been  applied   in  New 

*  302    York,  *  in  a  case  where  it  was  shown  that  a  minor 

daughter,  in  her  father's  absence,  and  without  his 
authority  or  approval,  wilfully  set  his  dog,  not  ordinarily  a 
vicious  animal,  upon  the  plaintiff's  hog,  which  was  thereby 
bitten  and  killed."^ 

For  such  injuries  an  infant  is  answerable  at  law,  out  of  his 
own  estate  ;  at  least,  if  he  is  old  enough  to  have  known  bet- 
ter.^    But  how  as  to  the  parent's  liability  ?     For  that  is  the 

1  M'Cartliy  v.  Guild,  12  Met.  291 ;  Kennard  v.  Burton,  25  Me.  39. 

2  Strohl  V.  Levan,  39  Penn.  St.  177.  And  see  Lashbrook  v.  Patten,  1  Duvall, 
316. 

8  Baker  i;.  Ilaldeman,  24  Mis.  219;  Paul  v.  Hummel,  43  Mis.  119. 
*  Tifit  V.  Tifft,  4  Denio,   175.     And  see  McManus  v.  Crickett,  1  East,  106 ; 
Foster  v.  Essex  Bank,  17  Mass.  479. 

6  Campbell  i'.  Stakes,  2  Wend.  137 ;  Bullock  v.  Babcock,  3  ib.  391. 
[  388  ] 


PARENT'S  RIGHTS,  ETC.,  FOR   CHILD'S   INJURIES.    *  362 

present  issue.  The  principles  of  the  Roman  law  cannot  be 
cited  to  much  advantage,  in  support  of  such  liability,  on  the 
score  of  agency,  or  otherwise  ;  since  under  that  system,  the 
child  was  little  better  than  the  slave  of  his  father ;  and  even 
as  to  slaves,  it  was  considered  at  the  time  of  the  Institutes, 
that  it  would  be  very  unjust,  when  a  servant  did  a  wrongful 
act,  to  make  the  master  lose  any  thing  more  than  the  servant 
himself.^  The  modern  rule  of  the  civil  law,  in  European 
countries,  is  to  make  every  person  responsible  for  injuries 
caused  by  the  act  of  persons  and  things  under  his  dominion  ; 
but  a  father  incurs  no  responsibility  for  the  act  of  his  minor 
child,  if  he  can  prove  that  he  was  not  able  to  prevent  the  act 
which  gives  rise  to  the  liability .^ 

This  point  received  some  attention  in  a  late  English  case, 
where  the  father  of  a  young  man,  about  seventeen  or  eigh- 
teen, was  sued  for  trespass  and  false  imprisonment.  The 
plaintiff  was  property-man  at  a  theatre,  of  which  the  defend- 
ant was  lessee.  The  young  man,  minor  son  of  the  defendant, 
acted  as  his  father's  treasurer.  The  plaintiff,  in  his  character 
of  property-man,  presented  to  the  treasurer  an  account,  con- 
taining some  wrongful  items  of  disbursement.  The  defend- 
ant, conceiving  this  to  be  an  intentional  fraud  on  the  part  of 
the  plaintiff,  dismissed  him  from  his  employment.  His  son, 
thereupon,  without  consulting  the  father,  indiscreetly 
caused  the  plaintiff  *  to  be  apprehended  by  a  policeman,  *  363 
and  taken  to  the  station  on  a  charge  of  obtaining  money 
by  false  pretences.  The  plaintiff  went  before  a  magistrate, 
and  was  remanded,  but  was  ultimately  discharged.  After 
the  remand,  the  son  told  his  father  what  he  had  done  ;  the 
latter  did  not  prohibit  him  from  proceeding  in  the  matter, 
but  said  that  as  the  son  had  begun  it,  he  would  not  interfere. 
The  court  decided  that  these  facts  showed  neither  a  previous 
authority  nor  subsequent  ratification  by  the  father,  sufficient 
to  render  him  liable  for  his  son's  conduct,  and  on  that  ground 
dismissed  the  suit.^ 

1  Smith's  Diet.  Greek  and  Roman  Antiq.  "Novalis  Actio."   Inst.  lib.  4,  tit.  8, 
by  Saunders. 

2  Civil  Code  France,  art.  1384 ;  Cleaveland  v.  Mayo,  19  La.  414.    See  Baker 
V.  Haldeman,  24  Mis.  219.  3  Moon  v.  Towers,  8  C  B.  n.  s.  611. 

[389] 


*  363  PARENT   AND   CHILD. 

The  opinions  of  the  several  judges  in  this  ease,  though  ex- 
pressed by  way  of  dicta,  exhibit  considerable  reluctance  to 
hold  the  father  liable,  as  a  trespasser  for  his  son's  torts.  Says 
Willes,  J.,  "  The  tendency  of  juries,  where  persons  under  age 
have  incurred  debts,  or  committed  wrongs,  to  make  their  rela- 
tives pay,  should,  in  my  opinion,  be  checked  by  the  courts. 
No  man  ought,  as  a  general  rule,  to  be  responsible  for  acts  not 
his  own."  1  And  says  the  Chief  Justice  :  "  Suppose  the  son  had 
knocked  the  plaintiff  down,  and  the  father  had  said,  '  I  think 
it  served  him  right,'  would  that  be  such  a  ratification  of  the 
son's  act  as  to  make  the  father  liable  as  a  trespasser  ?  "  ^ 

1  Per  Willes,  J.,  approved  by  Byles,  J.,  ib.     Williams,  J.,  duh. 

2  Per  Erie,  C.  J.,  ib.  As  to  the  injuries  of  a  servant,  and  his  master's  liability, 
see  "  Master  and  Servant,"  infra. 


[390] 


DUTIES   AND   RIGHTS   OF   CHILDREN.  *  364 


*  CHAPTER   V.  *364 

DUTIES    AND    RIGHTS    OF   CHILDREN,  WITH    REFERENCE    TO    THEIR 

PARENTS. 

"  The  duties  of  children  to  their  parents,"  says  Black- 
stone,  "  arise  from  a  principle  of  natural  justice  and  ret- 
ribution. For  to  those  who  gave  us  existence  we  naturally 
owe  subjection  and  obedience  during  our  minority,  and  honor 
and  reverence  ever  after ;  they  who  protected  the  weakness 
of  our  infancy  are  entitled  to  our  protection  in  the  infirmity 
of  their  age  ;  they  who  by  sustenance  and  education  have 
enabled  their  offspring  to  prosper,  ought  in  return  to  be  sup- 
ported by  that  offspring  in  case  they  stand  in  need  of  assist- 
ance." 1  Upon  this  principle  rest  whatever  duties  are  enjoined 
upon  children  to  their  parents  by  positive  law.  The  Atheni- 
ans compelled  children  to  provide  for  their  father  when  fallen 
into  poverty .2  And  Kent,  enforcing  the  same  precept,  cites 
several  other  historical  precedents  less  to  the  purpose.^ 

Perhaps  this  principle  could  not  have  been  better  expressed 
than  in  these  words  of  Blackstone  ;  but  it  is  to  be  observed 
that  the  obligation,  as  a  legal  one,  is  somewhat  vague  and  in- 
definite, extending  little  farther  than  the  succor  of  parents  in 
distress.  Gratitude,  certainly,  is  what  all  parents  true  to  their 
trust  have  the  right  to  expect ;  but  whether  it  is  due  to  those 
who  were  negligent  and  unfaithful  to  their  offspring  may 
admit  at  this  day  of  much  doubt.  In  other  words,  honor  and 
reverence  are  justly  awarded  according  to  one's  deserts.  The 
child,  when  full  grown,  naturally  marries  and  assumes  paren- 
tal liabilities  of  his  own ;  and  in  the  usual  course  of 
*  things  adults,  whether  father  or  son,  will  prudently  *  365 
provide  for  their  future  as  well  as  their  present  wants. 

I  1  Bl.  Com.  453.        ^  2  Potter's  Antiq.  347-351.        3  n  Kent  Com.  207. 

[391] 


*  365  PARENT  AND    CHILD. 

Some  have  thought  it  the  duty  of  fathers  to  leave  property  to 
their  children  at  their  death,  —  a  principle  somewhat  at  con- 
flict with  this  right  to  lean  upon  their  children  for  their  own 
maintenance.  Yet  exceptional  cases  must  occur  where  a 
father,  faithful  to  his  own  obligations,  is  yet  left,  through 
misfortune,  penniless  in  his  old  age  ;  and  here  the  voice  of 
nature  bids  the  children  aid,  comfort,  and  relieve.  Municipal 
law  quickens  the  child,  and  says,  "  If  your  parent,  however 
vagabond  and  worthless,  becomes  imable  to  maintain  himself, 
the  public  shall  not  relieve  him  as  a  pauper  ;  you,  his  children, 
being  of  sufficient  means,  must  assume  the  burden."  We 
speak  not  here  of  the  mother,  whose  moral  claims  upon  her 
children,  if  her  ow^n  husband  prove  incapable,  are  much 
stronger;  yet  it  must  be  admitted  that  the  municipal  law 
makes  no  great  distinction  on  her  behalf. 

Thus  may  be  explained  what  appears  now  a  well-settled 
rule  at  the  common  law :  namely,  that  there  is  no  legal  obli- 
gation resting  upon  a  child  to  support  a  parent ;  that,  while 
the  parent  is  bound  to  supply  necessaries  to  an  infant  child, 
an  adult  child,  in  the  absence  of  positive  statute,  is  not  bound 
to  supply  necessaries  to  his  aged  parent.^ 

But  statutes  have  been  enacted,  both  in  England  and  most 
parts  of  the  United  States,  to  enforce  this  imperfect  legal 
obligation,  usually  to  the  extent  of  relieving  cities  and  towns 
from  the  support  of  paupers.  Such  is  the  tenor  of  the  Eng- 
lish statutes  of  43  Eliz.  and  5  Geo.  I.,  to  which  allusion  has 
already  been  made ;  which  declare  in  effect  that  the  children, 
being  of  sufficient  ability,  of  poor,  old,  lame,  or  impotent  per- 
sons, not  able  to  maintain  themselves,  must  relieve  and  main- 
tain them.2     Ingratitude,  to  use  the  word  in  a  more  general 

sense,  the  parent  may  punish  still  further,  as  other  stat- 
*  366    utes  prescribe,  by  disinheriting  *  the  undutiful  children 

by  will :  ^  a  punishment  found  by  no  means  terrible  in 
cases  which  arise  under  the  statute  of  Elizabeth.     The  moral 

1  Eeeve  Dom.  Rel.  284 ;  Rex  v.  Munden,  1  Stra.  190 ;  Edwards  v.  Davis, 
16  Johns.  281 ;  Lebanon  v.  Griffin,  45  N.  H.  558  ;  Stone  v.  Stone,  32  Conn.  142. 

2  Supra,  ch.  2 ;  2  Kent  Com.  208. 

3  N.  Y.  Rev.  Sts.  p.  614 ;  2  Kent  Com.  208 ;  and  see  Ex  parte  Hunt,  5  Cow. 
284. 

[  392] 


DUTIES  AND  RIGHTS   OF   CHILDREN.  *  366 

obligation  of  honor  and  reverence  still  remains  clear  and 
unquestioned,  so  far  as  parental  faithfidness  has  earned  it ; 
doubtful  in  its  more  extended  application  ;  yet  alwa3's  a  favor- 
ite theme  of  the  poet  and  dramatist ;  and  never  to  be  lightly 
esteemed  among  men.^ 

The  law  does  not  imply,  then,  a  promise  from  the  child  to 
pay  for  necessaries,  furnished  without  his  request  to  an  indi- 
gent parent ;  and  the  natural  obligation  can  only  be  enforced 
in  the  mode  pointed  out  by  statute.^  The  promise  of  a  child 
to  pay  for  past  expenditures  in  relief  of  an  indigent  parent  is 
not  binding  in  law.-^  But  for  necessaries  or  other  goods  fur- 
nished to  the  parent,  or  for  the  parent's  benefit,  at  the  child's 
request,  the  latter  is  chargeable,  as  any  one  else  would  be.* 
And  it  is  held,  further,  that  where  one  of  several  children 
renders  support  at  the  request  of  the  others,  they  will  be 
liable  on  an  implied  promise  to  contribute.^  So  much,  then, 
for  the  duties  of  children. 

The  rights  of  children  with  reference  to  their  parents  may 
be  considered  more  at  length.  We  have  already  had  occasion 
to  observe,  that  the  child  may  to  a  certain  extent  bind  the 
parent  as  agent,  not  only  for  necessaries,  but  in  some  other 
transactions,  where  the  child  acts  within  the  scope  of  author- 
ity properly  conferred.  But  general  transactions  require 
proof  of  actual  authority  ;  and  a  son  has  *  ordinarily  no  *  367 
more  right,  as  such,  to  lend  his  father's  goods  than  a 

1  No  one  can  read  "  King  Lear  "  without  recognizing  the  sublimity  of  an  un- 
questioning faith  in  this  moral  duty.  Kent  (2  Com.  207)  quotes  the  speech  of 
Euryalus  in  the  ^neid  ;  but  the  instance'of  plus  yEneas  himself  is  still  stronger, 
perhaps  tlie  strongest,  to  be  found  in  the  classics  ;  devotion  to  his  aged  father 
rendering  him  more  illustrious  in  song  than  his  heroic  achievements,  and, 
largely  atoning,  as  some  would  say,  for  the  sin  of  conjugal  unfaithfulness. 

-  Rex  V.  Munden,  1  Stra.  190 ;  Edwards  v.  Davis,  16  Johns.  281  ;  Dawson  v. 
Dawson,  12  Iowa,  512.     See  Johnson  v.  Ballard,  11  Rich.  178. 

3  Mills  V.  Wyman,  3  Pick.  207  ;  Cook  v.  Bradley,  7  Conn.  57.  It  is  otherwise 
by  the  Civil  Code  of  Louisiana,  art.  245. 

*  Lebanon  v.  Griffin,  45  N.  H.  558 ;  Gordon  v.  Dix,  106  Mass.  305.  Such  a 
claim  might  now  be  enforced,  in  a  suitable  case,  against  the  separate  estate  of  a 
married  daughter,  on  the  usual  principles  applicable  to  her  contracts. 

*  Stone  V.  Stone,  32  Conn.  142.  And  see  Succession  of  Olivier,  18  La.  Ann. 
594  ;  Marsh  v.  Blackman,  50  Barb.  329. 

[393] 


*  367  PARENT   AND   CHILD. 

stranger.^  And  proof  that  in  one  instance  the  use  by  a  son 
of  his  father's  name  upon  negotiable  paper  discounted  at  a 
bank  was  known  and  acquiesced  in  by  the  father,  is  not  proof 
that  the  son  was  authorized  to  sign  subsequent  notes  in  the 
same  manner.^     The  principles  of  agency  are  here  applied. 

A  father  may  emancipate  his  child  and  thus  give  him  a  right 
to  his  own  earnings.  What  then  is  emancipation,  as  used 
with  reference  to  the  child  ?  Plainly,  the  term  emancipation 
is  borrowed  from  the  Roman  law,  and  may  be  referred  to  the 
old  formality  of  enfranchisement  by  the  father.  This  in 
ancient  times  was  done  by  an  imaginary  sale,  but  Justinian 
substituted  the  simpler  proceeding  of  manumission  before  a 
magistrate.^  In  Louisiana,  the  emancipation  of  minors  is  ex- 
pressly recognized  and  regulated  by  law.*  At  the  English 
law,  the  term  "  emancipation  "  is  generally  used  with  reference 
to  matters  of  parochial  settlement  and  the  support  of  paupers.^ 
But  in  American  cases  it  often  has  a  significance  more  nearly 
approaching  that  of  the  civil  law  ;  though  we  are  apt  to  use 
the  word  without  much  regard  to  precision. 

We  find  in  the  English  books  little  said  as  to  the  emancipa- 
tion of  minor  children  by  their  fathers.  In  fact,  the  English 
municipal  system  is  so  different  from  ours,  that  the  paternal 
authority  during  the  period  of  minority,  except  as  to  custody, 
gives  rise  to  little  controversy.  But  there  is  a  case  where  an 
infant  was  held  not  to  have  been  emancipated  by  his  enlist- 
ment.^ And  in  this  and  some  other  instances  the  principle 
of  emancipation  was  somewhat  discussed  ;  and  the  doctrine 
has  been  maintained  by  Lord.  Kenyon  and  others,  that  during 
the  minority  of  the  child  he  will  remain,  under  almost 

*  368    an}''  circumstances,  *  unemancipated ;  that  in  fact  there 

can  be  no  emancipation  of  an  infant  unless  he  marries, 
and  so  becomes  himself  the  head  of  a  family,  or  contracts 

1  Johnson  v.  Stone,  40  N.  H.  197  ;  supra,  pp.  827-331.  But  see  Bennett  v. 
Gillett,  3  Min.  423. 

2  Greenfield  Bank  v.  Crafts,  2  Allen,  269. 

'  Burrill  Law  Diet.  "  Emancipation ;  "  Bouvier,  ib.  ;  Inst.  1,  12. 
♦  Code,  art.  367  et  seq.  *  See  7  Q.  B.  574,  n. 

6  Rex  V.  Rotherfleld  Grays,  1  B.  &  C.  347. 

[394  J 


DUTIES  AND  EIGHTS   OF   CHILDREN.  *  368 

some  other  relation  so  as  to  wholly  and  permanently  exclude 
the  parental  control.^ 

Emancipation  is  not  so  strictly  construed  in  this  country. 
The  American  doctrine,  as  frequently  stated,  is  that  a  father 
may  "  emancipate  "  his  child  for  the  whole  remaining  period 
of  minority,  or  for  a  shorter  term  ;  that  this  emancipation 
may  be  by  an  instrument  in  writing,  by  verbal  agreement  or 
license,  or  by  implication  from  his  conduct ;  and  that  emanci- 
pation is  valid  against  creditors,  and  to  some  extent  against 
the  father.2  Let  us  see  then,  firsts  how  emancipation  may  in 
this  country  be  legally  brought  about;  secondly^  what  is  its 
legal  effect. 

And  first,  emancipation  may  be  either  by  instrument  in 
writing  or  by  parol  agreement,  or  it  may  be  inferred  from  the 
conduct  of  the  parent.  As  to  instruments  in  writing,  usually 
known  as  indentures,  the  statutes  of  the  different  States  are 
quite  explicit ;  and  the  same  general  doctrines  apply  to  chil- 
dren who  are  bound  out  as  to  apprentices  generally.^  But 
such  deeds,  so  far  as  they  derogate  from  the  child's  personal 
independence  and  welfare,  are  not  greatly  favored  ;  they  are 
usually  construed  with  great  strictness  as  between  the  minor 
and  his  parent,  guardian,  or  master;  and  the  policy  of  Amer- 
ican law  is  to  require  the  consent  of  the  child  himself  to  the 
instrument,  where  he  has  passed  the  period  of  nurture.* 

Next  as  to  emancipation  by  parol  agreement  or  license  of 
the  parent.     In  a  well-considered  Massachusetts  case, 
it  is  decided  *  that  the  emancipation  of  a  minor  child    *  369 
by  parol  agreement  and  without  consideration  is  revo- 
cable, until  acted  upon.^     Yet  there  can  be  little  doubt  at  the 

1  Rex  V.  Roach,  6  T.  R.  247  ;  Rex  v.  Wilmington,  5  B.  &  Ad.  525. 

2  Abbott  V.  Converse,  4  Allen,  530,  per  Chapman,  J. ;  2  Kent  Com.  194,  n. ; 
Whiting  V.  Earle,  3  Pick.  201 ;  Burlingame  v.  Burlingame,  7  Cow.  92;  Vamey 
V.  Young,  11  Vt.  258  ;  Rush  v.  Vought,  55  Penn.  St.  437. 

3  4  Com.  Dig.  579  ;  State  v.  Taylor,  2  Penning.  467 ;  Bolton  v.  Miller,  6  Ind. 
262.     See  "  Master  and  Servant,"  infra ;  Nickerson  v.  Easton,  12  Pick.  110. 

<  The  minor  child  of  pauper  parents  is  not  emancipated  so  as  to  gain  a  .settle- 
ment by  the  indenture  of  the  selectmen.  Frankfort  v.  New  Vineyard,  48  Me. 
665. 

5  Abbott  V.  Converse,  4  Allen,  530.  See  Morris  v.  Low,  4  Stew.  &  Port.  123. 
But  see  Chase  v.  Smith,  5  Vt.  556. 

[  395] 


♦369  PARENT  AND  CHILD. 

present  day  that  a  father  can  verbally  sell  or  give  his  minor 
son  his  time  ;  and  that  after  payment  or  performance  the  son 
is  entitled  to  his  earnings.^  A  special  contract  with  a  third 
person,  authorizing  him  to  employ  and  pay  the  child  himself, 
will  bind  the  parent,  and  payment  to  the  child  will  be  a  de- 
fence against  any  action  brought  by  his  father  against  the 
employer.^  Parol  agreements  are,  however,  within  the  stat- 
ute of  frauds.2 

Emancipation,  strictly  so  called,  is  not  to  be  presumed  ;  it 
must  be  proved.  Where  it  appears  that  the  father,  by  parol, 
places  his  daughter  in  a  certain  family,  that  by  the  terms  of 
the  agreement  the  employer  may  turn  her  away  when  dissat- 
isfied, that  the  father  may  rescind  the  contract  at  pleasure 
and  reclaim  his  daughter  ;  these,  and  similar  circumstances, 
may  be  sufficient  to  entitle  the  child  to  her  own  wages  for 
the  time  being,  but  they  cannot  constitute  emancipation  as 
against  the  father.^  We  are  to  distinguish,  in  fact,  between 
a  license  for  the  child  to  go  out  and  work  temporarily,  and 
the  more  formal  renunciation  of  parental  rights.  Thus,  if 
the  father  agrees  to  pay  his  son  so  much  for  every  day  he 
would  labor  for  another,  but  without  intending  to  give  him 
his  time,  and  merely  as  an  incentive  to  industry,  this  is  not 
to  be  construed  into  a  contract  of  emancipation,  but  rather  as 
a  mere  gratuity  to  encourage  the  son  in  the  formation  of 
industrious  and  useful  habits.^ 

But  other  circumstances  may  raise  a  special  contract  on  the 

minor's  behalf,  or  indeed  be  held  to  emancipate  him 
*  370    altogether.     *  It  is  a  well-settled  rule  in  this  country 

that  if  the  parent  absconds,  turns  his  child  out  of  doors, 
or  leaves  him  to  shift  for  himself,  the  son  is  entitled  to  his 
own  wages  ;  and  our  courts  are  very  liberal  in  allowing  chil- 
dren to  avail  themselves  of  any  breach  of  parental  obligation 

1  Shute  V.  Dorr,  5  Wend.  204;  Snediker  v.  Everingham,  3  Dutch.  143;  Gale 
V.  Parrott,  1  N.  H.  28  ;  United  States  v.  Metz,  2  Watts,  406 ;  Corey  v.  Corey,  19 
Pick.  29. 

2  Shute  V.  Dorr,  5  Wend.  204. 

3  Sumner  v.  Sebec,  3  Me.  223.  See  Clark  v.  Fitch,  2  Wend.  459  ;  Clinton  v. 
York,  26  Me.  167. 

*  Arnold  v.  Norton,  25  Conn.  92. 

[  396  ] 


DUTIES   AND   RIGHTS   OF   CHILDREN.  *  370 

SO  as  to  earn  an  honest  livelihood  by  their  own  toil.^  The 
presumption  raised  in  such  cases  may  be  termed  a  presump- 
tion of  necessity.  So  where  the  husband  abandons  his  child 
to  the  care  of  his  mother,  his  subsequent  claims  for  the  earn- 
ings of  either  are  to  be  regarded  with  very  little  favor.^ 
Even  slighter  circumstances,  which  impute  no  misconduct  to 
the  father,  but  evince  a  consent  for  his  son  to  leave  the  pa- 
rental roof  and  go  into  the  world  to  seek  his  own  fortune,  are 
often  construed  into  emancipation.^  But  the  desertion  of  a 
minor  from  his  father's  home,  with  vagrancy  and  crime,  does 
not  of  itself  constitute  emancipation.*  And  there  may  be 
complete  .emancipation,  although  the  minor  continue  to  reside 
with  his  father.^ 

The  marriage  of  an  infant,  with  his  parents'  consent,  re- 
moves him  from  parental  control,  and,  we  may  presume,  gives 
him  a  right  as  against  the  father,  to  apply  all  his  earnings  to 
the  support  of  his  family  ;  but  whether  all  the  consequences 
of  legal  emancipation  must  necessarily  follow  is  doubtful.^ 
Marriage,  without  the  consent  of  the  parent,  ought  to  confer 
the  same  right  upon  an  infant,  inasmuch  as  the  claims  of  wife 
and  child  in  either  case  are  paramount,  and  the  consequences 
of  all  marriages  are  much  the  same  ;  but  in  Maine  it 
has  been  decided  *  otherwise,  and  that  the  disobedient  *  371 
infant  is  punishable  by  being  compelled  to  pay  his 
father  his  earnings ;  though  what  is  to  become  of  the  wife 
meantime  does  not  clearly  appear.''  A  minor  daughter  is 
emancipated  by  her  marriage  with  the  father's  consent ;  and 

1  Clinton  v.  York,  26  Me.  167  ;  Cloud  v.  Hamilton,  11  Humph.  104;  Night- 
ingale V.  Withington,  15  Mass.  275;  Stansbury  v.  Bertron,  7  W.  &  S.  3G2;  Ever- 
ett r.  Slierfey,  1  Iowa,  366;  Tlie  Etna,  Ware,  462;  Gary  v.  James,  4  Desaus. 
185;  Conovar  t>.  Cooper,  3  Barb.  115;  Jeiiison  v.  Graves,  2  Blackf.  440;  Lyon 
V.  Boiling,  14  Ala.  763 ;  Ream  v.  Watkins,  27  Mis.  516. 

2  Wodell  V.  Coggeshall,  2  Met.  89.  See  Dennysville  v.  Trescott,  30  Me. 
470. 

3  Campbell  v.  Campbell,  3  Stockt.  268 ;  Johnson  v.  Gibson,  4  E.  D.  Smith, 
231  ;  Dicks  v.  Grissom,  1  Freem.  Ch.  428 ;  Dodge  v.  Favor,  15  Gray,  82 ; 
Boobier  v.  Boobier,  30  Me.  406.     But  see  Stiles  v.  Granville,  6  Cush.  458. 

*  Bangor  v.  Readfield,  82  Me.  66. 

«  M'Closkey  v.  Cyphert,  27  Penn.  St.  220. 

0  Taunton  i'.  Plymouth,  15  Mass.  203 ;  Dicks  v.  Grissom,  1  Freem.  Ch.  423. 

■»  White  V.  Henry,  24  Me.  531.     See  Burr  i'.  Wilson,  18  Tex.  367. 

[397] 


*  371  PARENT  AND  CHILD. 

here,  at  least,  it  is  ruled  that  consent  may  be  inferred  from 
circumstances.^ 

Secondly.  As  to  the  effect  of  emancipation.  The  conse- 
quence is  on  the  one  hand  to  give  the  child  the  right  to  his 
own  wages,  the  disposal  of  his  own  time,  and,  in  a  great 
measure,  the  control  of  his  own  person ;  on  the  other  hand 
to  relieve  the  parent  of  all  legal  obligation  to  support.^ 
Moreover,  the  emancipated  child's  earnings  go  to  his  admin- 
istrator upon  his  decease,  to  be  distributed  according  to  law.^ 

A  father  may  give  to  his  son  a  part  as  well  as  the  whole 
period  of  his  minority,  in  Avhich  case  the  rights  of  the  latter 
are  limited  accordingly.*  If  the  father  receives  his  son's 
earnings  after  giving  the  son  his  time,  it  will  be  a  good  con- 
sideration for  any  promise  from  the  father.^  And  he  cannot 
sue  for  the  services  of  such  son  performed  within  the  period 
embraced  by  the  agreement,  although  he  has  given  notice  to 
the  party  employing  the  son  not  to  pay  his  wages  to  him.^ 
Nor  can  the  father's  creditors  attach  such  earnings  or  prop- 
erty which  was  purchased  therewith  for  the  infant's  benefit." 
But  the  child  sues  in  such  case  for  his  own  wages.^  And  if 
he  is  actually  emancipated  by  his  father,  and  an  express 
promise  is  made  to  pay  him  for  his  labor,  with  the  consent  of 
his  father,  no  other  notice  of  his  emancipation  is  necessary  to 
charge  the  defendant  and  enable  the  minor  to  sue.^  In 
brief,  the  minor  who  is  released  from  his  father's  service 
stands,  as  to  his  contracts  for  labor  either  with  strangers  or 

1  Bucksport  V.  Rockland,  56  Me.  22. 

2  Nightingale  v.  "Withington,  15  Mass.  272 ;  Corey  v.  Corey,  19  Pick.  29  ; 
Varney  v.  Young,  11  Vt.  258  ;  Johnson  v.  Gibson,  4  E.  D.  Smith,  231. 

3  Smith  V.  Knowlton,  11  N.  H.  191. 

*  Tillotson  V.  M'Crillis,  11  Vt.  477.  And  see  Winn  v.  Sprague,  35  Vt.  243  ; 
supra,  pp.  345-349. 

*  Jenney  v.  Alden,  12  Mass.  375. 

6  Morse  v.  Welton,  6  Conn.  647  ;  Wodell  v.  Coggeshall,  2  Met.  89 ;  Bray  v. 
Wheeler,  29  Vt.  514. 

1  Chase  v.  Elkins,  2  Vt.  290 ;  Weeks  v.  Leighton,  5  N.  H.  343 ;  M'CIoskey  v. 
Cyphert,  27  Penn.  St.  220  ;  Bobo  c  Bryson,  21  Ark.  387 ;  Lord  v.  Poor,  23  Me. 
569  ;  Lyon  v.  Boiling,  14  Ala.  763 ;  Jolinson  v.  Silsbee,  49  N.  H.  543. 

8  Ream  v.  Watkins,  27  Mis.  516. 

9  Wood  V.  Corcoran,  1  Allen,  405.  The  earnings  of  an  emancipated  child 
cannot  be  attached  by  trustee  process  for  the  father's  debts.  Manchester  v. 
Smith,  12  Pick.  113.     And  see  Bray  v.  Wheeler,  29  Vt.  614. 

[  398  ] 


DUTIES  AND  RIGHTS   OF   CHILDREN.  *  371 

with  him,  upon  the  same  footing  as  if  he  had  arrived  at  full 
age  ;  and,  such  being  the  case,  the  father  may  contract  to 
employ  and  pay  the  child  for  his  services,  and  be  bound  in 
consequence  like  any  stranger  to  fulfil  his  agreement.^ 

*  A  child,  on  arriving  at  full  age,  becomes  emanci-  *  372 
pated.2  But,  whether  son  or  daughter,  the  child,  by 
continuing  with  the  jmrent  and  living  at  the  same  home,  may 
still  be  legally  in  the  service  of  the  parent.  On  this  point 
there  is  no  dispute ;  but  in  settling  the  presumptions  of  law 
there  is  apparently  some  conflict  of  authorities.  Thus,  where 
the  parent  sues  for  loss  of  services  because  of  the  seduction 
of  a  grown-up  daughter,  a  strong  disposition  is  frequently 
manifested  to  rule  against  complete  emancipation  so  as  to 
give  damages.  Where  the  conflict  is  between  parent  and 
child,  over  work  done  for  a  stranger,  the  tendency  is  in  favor 
of  complete  emancipation,  and  to  allow  the  child,  attained  to 
full  age,  the  right  to  control  his  own  wages  ;  this  being  for 
his  benefit. 

If  a  child,  after  arriving  at  the  age  of  twenty-one  years, 
then,  continues  to  live,  labor,  and  render  service  in  the  father's 
family,  with  his  knowledge  and  consent,  but  without  any 
agreement  or  understanding  as  to  compensation,  the  law 
raises  no  presumption  of  a  promise  to  enable  the  child  to 
maintain  an  action  against  the  father  to  recover  compensa- 
tion.3  The  presumption  here  is,  that  the  parties  do  not  con- 
template a  payment  of  wages  for  services.  For  where  the 
relation  of  'parent  and  child  exists,  the  law  will  not  readily 
assume  that  of  debtor  and  creditor  likewise.  But  this  pre- 
sumption may  be  overthrown,  and  the  reverse  established,  by 
proof  of  an  express  or  implied  contract ;  an  implied  contract 
being  proven  by  facts  and  circumstances  which  show  that 

1  Steel  V.  Steel,  12  Penn.  St.  64  ;  Hall  v.  Hall,  44  N.  H.  293. 

-  2  Kent  Com.  206 ;  Poultney  v.  Glover,  23  Vt.  328;  Hardwick  v.  Paulet,  36 
Vt.  320 ;  supra,  p.  346. 

3  Dye  V.  Kerr,  15  Barb.  444  ;  Lipe  v.  Eisenlerd,  82  N.  Y.  229 ;  Mosteller's 
Appeal,  30  Penn.  St.  473  ;  Ridgway  v.  English,  2  N.  J.  409 ;  Andover  v.  Merri- 
mack County,  37  N.  H.  437  ;  Williams  v.  Barnes,  3  Dev.  348  ;  Prickett  v. 
Prickett,  5  C.  E.  Green,  478;  Perry  v.  Perry,  2  Duv.  (Ky.)  312;  Hey  wood  i;. 
Brooks,  47  N.  H.  231. 

[  399] 


*  372  PARENT   AND   CHILD. 

both  parties,  at  the  thne  the  services  were  performed,  con- 
templated or  intended  pecuniary  recomj)ense.^  The  dechira- 
tions  of  parents  in  matters  of  this  sort,  if  somewhat  vague, 
are  not  apt  to  be  construed  in  the  child's  favor.  And,  on  the 
other  hand,  the  presumption  is  equally  against  regarding  the 
services  of  a  father  who  lives  with  his  son  and  does  work  for 
him,  as  rendered  for  compensation  ;  although  here,  too,  the  re- 
verse might  be  established  by  evidence  of  a  contract.^ 

*  373        *  Circumstances  which  show  an  unusual  burden  as- 

sumed by  the  son,  or  special  advantages  reaped  by  the 
father,  are  sometimes  favorably  construed  in  the  child's  favor. 
Thus,  it  is  held  that  where  a  grown-up  son  purchases  his 
father's  farm  and  continues  to  support  the  father  and  an  adult 
idiot  brother  upon  it,  not  only  may  the  father's  board  be  re- 
covered against  his  estate,  on  due  proof,  but  also  that  of  the 
heljDless  brother  ;  for  the  moral  obligation  of  a  father  to  sup- 
port an  adult  idiot  son  is  greater  than  that  of  a  brother,  where 
the  parties  are  equally  able.^  So  where  the  adult  son  assumes 
entire  control  and  management  of  the  business,  works  the 
farm,  and  adds  largely  to  the  family  profits  by  his  extraor- 
dinary skill.*  Such  cases  are  by  no  means  uncommon  among 
the  enterprising  settlers  of  our  Western  country,  who  culti- 
vate the  soil  and  live  in  little  colonies  ;  and  American  courts 
cannot  be  insensible  to  the  merits  of  young  persons  who  adorn 
the  filial  relation.  As  to  use  and  occupation  of  real  estate, 
where  the  occupant  is  the  son  of  the  owner,  it  is  held  that 
while  payment  of  rent  may  be  presumed,  slight  evidence  is 
sufficient  to  show  the  contrary .° 

But  the  rule  in  some  of  the  older  States  is  rather  strict. 
As  in  Vermont,  where  the  plaintiff  was  brought  up  in  her 
grandfather's  family,  and  had  gone  abroad  after  becoming  of 

1  Miller  v.  Miller,  16  111.  296;  Fitch  v.  Peckham,  16  Vt.  150;  Hart  v.  Hart, 
41  Mis.  441  ;  Updike  v.  Ten  Broeck,  3  Vroom,  105;  Swartz  v.  Hazlett,  8  Cal. 
118.  See  Tremont  v.  Mount  Desert,  36  Me.  390 ;  Leidig  v.  Coover's  Ex'rs,  47 
Penn.  St.  634.     But  see  Putnam  v.  Town,  34  Vt.  429. 

2  Harris  v.  Currier,  44  Vt.  468. 
8  House  V.  House,  6  Ind.  60. 

*  Adams  v.  Adams,  23  Ind.  50.     And  see  Fislier  v.  Fisher,  5  Wis.  472. 

*  See  Oakes  v.  Oakes,  16  III.  106  ;  Hays  v.  Seward,  24  Ind.  852.  And  see 
Whipple  V.  Dow,  2  Mass.  416. 

[  400  ] 


DUTIES  AND   EIGHTS   OF   CHILDREN.  *  373 

age  to  work  for  herself,  but  returned  at  the  defendant's  re- 
quest, upon  the  assurance  she  should  be  paid  "  as  well  as  she 
was  then  doing."  Notwithstanding  repeated  assurances  of 
future  payment,  it  was  held  that  no  definite  expectation  was 
thus  shown  that  either  the  support  or  service  would  create  a 
debt.i  And  in  New  Hampshire,  the  presumiDtion  of 
compensation  is  not  favored,  *  where  children,  resid-  *  374 
ing  with  parents,  carry  on  in  common  the  farms  they 
respectively  own,  the  proceeds  of  the  whole  property  being 
applied  to  the  common  benefit  of  the  family,  or  to  the  im- 
provement of  the  common  property.^  A  father's  gift  to  his 
child  should  also  be  perfected  in  order  to  be  upheld  after- 
wards against  him.  Aijd  all  family  arrangements  of  the 
filial  kind,  in  order  to  stand  firmly,  should  be  free  from  fraud 
or  undue  influence,  on  both  sides,  and  made  in  good  faith.^ 

To  support,  however,  a  general  contract  between  a  parent 
and  his  adult  child,  as  against  strangers,  a  slight  consideration 
is  often  held  sufficient.  And  a  deed  of  personal  property 
from  parent  to  child,  the  parent  not  being  indebted  at  the 
time,  by  which  it  is  agreed  that  the  parent  shall  keep  pos- 
session during  life,  is  not  considered  void.'*  So  it  is  held  that 
a  bond  executed  by  a  son  to  his  parent  for  -$500,  Avith  interest 
semi-annually,  if  demanded^  is  a  valuable  consideration,  suf- 
ficient to  sustain^  a  conveyance  of  land  as  a  purchase.^  And 
even  a  deed  from  a  parent  to  a  child  for  the  consideration  of 
love  and  affection,  is  not  absolutely  void  as  against  creditors. 
The  want  of  a  valuable  consideration  may  be  a  badge  of 
fraud,  Init  if  so,  it  is  only  j)resumptive,  not  conclusive  evi- 
dence of  it,  and  may  be  met  and  rebutted  by  opposing 
evidence.^  This  is  the  American  rule  ;  but  as  we  have  seen 
the  statutes  of  Elizabeth  with  reference  to  voluntary  settle- 
ments do  not  receive  a  uniform  interpretation  in  our  State 

1  Davis  V.  Goodenow,  27  Vt.  717.     And  see  Hall  v.  Hall,  44  N.  H.  293.     But 
see  Steel  v.  Steel,  12  Penn.  St.  6G  ;  Kurtz  v.  Hibner,  55  111.  514. 
■-'  Scavey  v.  Seavey,  37  N.  H.  125. 

3  Taylor  v.  Staples,  8  R.  I.  170 ;  Van  Donge  v.  Van  Donge,  23  Mich.  321. 

4  Bohn  V.  Headley,  7  Har.  &  J.  257 ;  Shepherd  ;;.  Bevin,  9  Gill,  32. 

5  Jackson  v.  Peek,  4  Wend.  300. 

*>  llinde's  Lessee  v.  Longworth,  11  Wheat.  213 ;  Seward  v.  Jackson,  8  Cow. 
406 ;  Haines  v.  Haines,  6  Md.  435. 

26  [  401  ] 


*  374  PARENT  AND  CHILD. 

courts.  There  are  doubtless  circumstances  under  which  a 
father's  voluntary  settlement,  whether  upon  minor  or  adult 
children,  would  be  set  aside  as  a  fraud  upon  subsequent,  and 
still  more  upon  existing  creditors.^ 

Where  a  son  purchases  and  stocks  a  farm  as  a  home  for  an 
indigent  father,  who  resides  and  labors  thereon,  the  products 
are  not  subject  to  attachment  as  the  son's  property.^  On  the 
other  hand,  where  a  parent  permits  the  child  to  receive  and 
invest  his  earnings,  the  benefit  of  the  investment  belongs  to 
the  child.^  And  in  Pennsylvania,  a  minor  child  who  improves 
and  settles  a  tract  of  land  with  the  father's  permission,  may 
acquire  a  title  by  making  improvements  as  effectually  as  if 
he  were  of  age.* 

*  375        *  The  English  cases  are  few  as  to  transactions  strictly 

between  parent  and  child  ;  and  these  turn  chiefly  upon 
trusts  and  family  settlements.  There  are  recent  cases  where 
the  transactions  of  children  with  fortunes  have  been  set  aside 
in  equity,  for  undue  influence  exerted  over  them  by  their 
parents.  Thus  a  mortgage  and  subsequent  sale  by  a  son  just 
arrived  at  full  age,  effected  under  the  father's  influence,  and 
to  his  own  injury,  has  been  annulled.^  So  with  a  gift  from 
child  to  parent,  though  not  unless  a  suit  to  set  the  gift  aside 
be  instituted  in  due  time.^  Tlie  principle  of  equity  is,  that 
if  there  be  a  pecuniary  transaction  between  parent  and  child, 
just  after  the  child  attains  the  age  of  twenty-one  years,  and 
prior  to  what  may  be  called  a  complete  emancipation,  without 
any  benefit  moving  to  the  child,  the  presumption  is,  that  an 
undue  influence  has  been  exercised  to  procure  that  liability 
on  the  part  of  the  child  ;  and  that  it  is  the  business  and  the 
duty  of  the  party  who  endeavors  to  maintain  such  a  transac- 
tion, to  show  that  such  presumption  is  adequately  rebutted  ; 

1  See  supra,  pp.  276-281.  And  see  Carter  v.  Grimshaw,  49  N.  H.  100;  Wil- 
son V.  Kohlheim,  46  Miss.  346  ;  Kaye  v.  Crawford,  22  Wis.  320 ;  Moneil  v. 
Scherrick,  54  111.  269. 

2  Brown  v.  Scott,  7  Vt.  67.  '  Campbell  v.  Campbell,  3  Stockt.  268. 

*  Galbraith  v.  Black,  4  S.  &  R.  207.  See  Jenison  v.  Graves,  2  Blackf.  441. 
But  see  Bell  v.  Hallenback,  Wright,  761 ;  Fonda  v.  Van  Home,  15  Wend.  631 ; 
Brown  v.  M'Donald,  1  Hill  Ch.  297. 

6  Savery  v.  King,  35  E.  L.  &  Eq.  100.     And  see  Baker  v.  Bradley,  ib.  449. 

6  Wright  V.  Vanderplank,  39  E.  L.  &  Eq.  147  ;  Turner  v.  Collins,  L.  R.  7  Ch. 
829. 

[402] 


DUTIES  AND   RIGHTS   OF   CHILDREN.  *  375 

but  that  the  presumption  may  always  be  removed.^  On  the 
other  hand,  in  transactions  between  members  of  the  same 
family,  even  though  that  relation  subsists  between  them,  from 
whence  the  court  will  infer  the  moral  certainty  of  the  exist- 
ence of  considerable  influence,  and  the  probability  of  its  hav- 
ing been  exercised,  yet  if  the  transaction  be  one  that  tends  to 
the  peace  or  security  of  the  family,  to  the  avoiding  of  family 
disputes  and  litigation,  or  to  the  preservation  of  the  family 
property,  the  principles  by  which  such  transactions  must  be 
tried  are  not  those  applicable  to  dealings  between  strangers, 
but  such  as  on  the  most  comprehensive  experience  have  been 
found  to  be  most  for  the  interest  of  families.^ 

An  imbecile  father  living  with  his  grown  children  may  have 
a  notice  to  quit  served  by  delivery  to  one  of  them  in  such  a 
manner  as  to  entitle  the  landlord  to  maintain  ejectment  against 
the  father  to  whom  the  notice  had  been  addressed.-^ 

*  If  the  father,  during  his  lifetime,  makes  an  advance-  *  376 
ment  to  any  of  his  children,  towards  their  distributive 
share  in  his  estate,  the  rule  is  to  reckon  this  in  making  the 
distribution.*  In  England,  it  would  appear  that  acts  of  the 
father  have  often  been  so  construed,  under  the  statute  of 
distributions,  with  less  reference  to  intention  of  the  parties 
than  the  requirements  of  equal  justice.  Thus  annuities  are 
reckoned  an  advancement ;  contingent  provisions  ;  large  pre- 
miums for  a  trade  or  profession  ;  and  loans  of  considerable 
importance  to  a  son.^  But  small  and  mconsiderable  sums  for 
current  expenses,  ornaments,  and  the  education  of  children 
are  not  so  reckoned.^  Nor  is  the  payment  to  the  daughter's 
husband  of  .£1,000,  jocularly  stated  by  the  father  to  be  in 


^  Archer  v.  Hudson,  7  Beav.  551,  per  Lord  Langdale.  See  Houghton  v. 
Houghton,  11  E.  L.  &  Eq.  134;  s.  c.  15  Beav.  278,  wliere  tliis  suhject  is  fully 
discussed.     See  also  American  case  of  Bergen  v.  Udall,  31  Barb.  'J. 

'^  Master  of  Rolls,  in  Houghton  v.  Houghton,  ib. 

'  Tanhani  i\  Nicholson,  L.  R.  5  Ho.  L.  661. 

*  2  Redf.  Wills,  908  et  seq. ;  Edwards  v.  Freeman,  2  P.  Wms.  435. 

5  Smith  V.  Smith,  3  Gif.  2G3 ;  2  Wms.  Ex'rs,  1385  ;  Edward  v.  Freeman,  2  P 
Wras.  435 ;  2  Redf.  Wills,  908,  909  ;  Boyd  r.  Boyd,  L.  R.  4  Eq.  305. 

6  2  Wms.  Ex'rs,  1391.    And  see  Miller's  Appeal,  40  Penn.  St.  67. 

[  403  ] 


*  376  PARENT   AND   CHILD. 

exchange  for  his  snuffbox,  to  be  considered  an  advancement 
to  the  daughter.^ 

In  a  modern  English  case  a  father  lent  the  sum  of  XI 0,000 
to  his  son,  to  assist  him  in  forming  a  partnership  in  the  busi- 
ness of  a  sugar-reiiner,  and  took  his  promissory  note  for  the 
repayment  of  that  sum  on  demand.  It  appeared  that  the  son 
engaged  in  business  at  the  urgent  desire  of  his  father,  that 
finding  it  was  a  losing  concern  he  became  desirous  of  retiring, 
but  remained  at  the  urgent  request  of  his  father ;  and  con- 
tinued the  business  with  reluctance,  sustaining  heavy  losses. 
The  father  on  his  death-bed  caused  the  promissory  note  to  be 
burned,  and  died  intestate.  It  was  held  that  although  the 
circumstances  under  which  the  note  had  been  destroyed 
amounted  to  an  equitable,  release  of  the  debt ;  yet,  that  the 
sum  which  remained  due  on  it  must  be  considered  an  ad- 
vancement to  the  son.2 

But  the  rule  in  this  country  does  not  appear  to  be 

*  377    so  strict ;  and  in  some  States  the  statutes  of  *  distribu- 

tions, unlike  those  of  England,  permit  nothing  to  be 
reckoned  as  an  advancement  to  a  child  by  the  father,  unless 
proved  to  have  been  so  intended  and  chargeable  on  the  child's 
share  by  certain  evidence  prescribed.^  And  it  is  laid  down 
that  M  hether  a  provision  of  the  deceased  in  his  lifetime  be  a 
gift  or  an  advancement  is  a  question  of  intention ;  but  that  if 
it  was  originally  intended  by  both  as  a  gift,  it  cannot  subse- 
quently be  treated,  by  the  father  as  an  advancement,  at  least 
without  the  son's  knowledge  or  consent.*  Yet  it  is  also  ruled 
that  if  a  son  during  his  father's  life  receipts  for  and  actually 
receives  his  "full  proportion"  during  his  father's  life,  he  can 
claim  nothing  more  from  the  estate  after  his  father's  death.^ 
Advancements  do  not  bear  interest.^ 

1  McClure  v.  Evans,  29  Beav.  422.  And  see  Stock  v.  McAvoy,  L.  R.  15  Eq. 
55. 

■i  Gilbert  r.  "Wetherell,  2  Sim.  &  Stu.  254,  per  Sir  John  Leach,  M.  R.  But 
see  Auster  v.  Powell,  31  Beav.  583,  and  n. 

3  Osgood  V.  Breed's  Heirs,  17  Mass.  356  ;  2  Redf.  Wills,  908,  909. 

■»  Lawson's  Appeal,  23  Penn.  St.  85;  Sherwood  v.  Smith,  23  Conn.  516.  See 
Black  V.  Whitall,  1  Stockt.  572. 

5  Cusliing  V.  Cushing,  7  Bush,  259. 

6  Osgood  V.  Breed's  Heirs,   17  Mass.  356;  Nelson  v.  "Wyan,  21  Mis.  347. 

[404] 


DUTIES  AND   RIGHTS  OF  CHILDREN.  *377 

"Where  the  child  of  a  father  dying  intestate  has  received 
an  advancement,  in  real  or  personal  estate,  and  wishes  to 
come  into  the  general  partition  or  distribution  of  the  estate, 
he  may  bring  his  advancement  into  hotchpot  with  the  whole 
estate  of  the  intestate,  real  and  personal ;  and  shall  there- 
upon be  entitled  to  his  just  proportion  of  the  estate.  This 
is  the  English  rule,  and  it  prevails  likewise  in  many  of  the 
United  States.^  In  such  case  the  value  of  the  property  at 
the  time  of  advancement  governs  in  the  distril)ution,2  The 
principle  of  this  rule  is  equality  of  distribution  of  the  ances- 
tor's personal  estate  among  his  children  and  their  descend- 
ants. 

The  sale  of  expectant  estates  by  heirs  is  not  to  be  encour- 
aged ;  one  reason  being  that  it  opens  the  door  to  taking  undue 
advantage  of  an  heir  in  distressed  and  necessitous  circum- 
stances ;  the  other  that  public  policy  should  prevent 
an  heir  from  shaldng  *off  his  father's  aiithorit}^  and  *  378 
feeding  his  extravagance  by  disposing  of  the  family 
estate.^  The  principle  was  formerly  laid  down  with  much 
emphasis  in  Massachusetts.*  But  the  present  rule  of  chan- 
cery is  to  support  such  sales  to  others,  if  made  bona  fide,  and 
for  valuable  consideration ;  and  in  case  of  an  heir  apparent, 
if  the  instrument  be  made  with  the  knowledge  and  consent 
of  the  father.^  Whether,  however,  the  son  can  release  to  the 
father  himself,  so  as  to  operate  further  than  as  a  receipt  for 
property  advanced  to  him,  i-s  more  doubtful.*^ 

As  to  proof  of  an  advancement,  see  Bulkley'  v.  Noble,  2  Pick.  337  ;  and  see 
Hartwell  v.  Rice,  1  Gray,  587  ;  Miller's  Appeal,  40  Penn.  St.  57 ;  Smith  v. 
Smith,  59  Me.  214  ;  Vanzant  v.  Davies,  G  Ohio  n.  s.  52 ;  2  Story  Eq.  Juris. 
§  1202 ;  Brown  v.  Burk,  22  Geo.  574  ;  Cleaver  v.  Kirk,  3  Met.  (Ky.)  270 ;  Hodg- 
son V.  Macy,  8  Ind.  121;  Vaden  v.  Hance,  1  Head,  300;  Fulton  i'.  Smith,  27 
Geo.  413 ;  Montgomery  v.  Chaney,  13  La.  Ann.  207. 

1  2  Bl.  Com.  516 ;  2  Wms.  Ex'rs,  1386  ;  2  Kent  Com.  421 ;  Grattan  v.  Grat- 
tan,  18  111.  167  ;  Jackson  v.  Jackson,  28  Miss.  674. 

2  See  Jenkins  v.  Mitchell,  4  Jones  Eq.  207.  For  the  New  York  rule,  see 
Terry  v.  Dayton,  31  Barb.  519. 

8  Per  Lord  Thurlow,  1  Bro.  C.  C.  10;  Co.  Litt.  265  a;  Sugd.  Vendors,  314, 
and  cases  cited ;  1  Story  Eq.  Juris.  §§  336-339. 

*  But  see  Trull  v.  Eastman,  3  Met.  121  ;  contra,  Boynton  v.  Hubbard,  7  Mass. 
112.  See  Varick  v.  Edwards,  1  lloff.  Ch.  383;  2  Kent  Com.  475,  and  cases 
cited.  *  Curtis  v.  Curtis,  40  Me.  24. 

6  See  Robinson  v.  Robinson,  Brayt.  59;  Walker  v.  Walker.  67  Penn.  St.  186. 

[  405  ] 


♦378  PARENT   AND  CHILD. 

Where  a  legacy  is  given  by  a  parent  to  his  child,  or  by 
one  m  loco  j^at'entis,  by  way  of  maintenance,  the  child  as 
legatee  is  privileged  in  being  allowed  interest  thereon  from 
the  testator's  death  ;  this  so  as  to  secure  the  child's  prompt 
and  full  support.  And  the  right  to  interest  is  held  to  be  all 
the  same  notwithstanding  the  child  has  no  guardian.^ 

The  child's  right  of  inheritance  from  his  parent,  it  may  be 
added,  is  strongly  favored  both  in  England  and  America. 
But  while  in  the  former  country  the  eldest  son  is  so  far 
preferred  to  the  other  children  that  he  shall  take  the  whole 
real  estate  by  descent  to  himself,  the  American  rule  is  that  all 
children  shall  inherit  alike,  whether  sons  or  daughters.  And 
a  father's  will  is  to  be  construed  with  favor  to  his  own  off- 
spring ;  indeed,  some  of  our  local  statutes  expressly  provide 
that  when  a  testator  omits  to  provide  for  any  children,  they 
shall  take  the  same  share  of  the  testator's  estate,  both  real 
and  personal,  that  would  have  passed  to  them  if  the  parent 
had  died  intestate,  unless  they  had  other  provision  during  the 
testator's  life,  or  it  clearly  appears  that  the  omission  was  in- 
tentional on  his  part.2 

It  is  well  settled  that  in  the  absence  of  statutes  a  person 
is  not  entitled  to  the  custody  and  earnings  of  step-children, 
nor  bound  by  law  to  maintain  them.^  Yet,  if  a  step-father 
voluntarily  assumes  the  care  and  support  of  a  step-child,  he 
stands  in  loco  parentis;  and  the  presumption  then  is,  that 
they  deal  with  each  other  as  parent  and  child,  and  not  as 
master  and  servant ;  in  which  case  the  ordinary  rules  of 
parent  and  child  will  be  held  to  apply  ;  and  consequently 
neither  compensation  for  board  is  presumed  on  the  one  hand, 
nor  for  services  on  the   other.*     So  may  this  quasi  relation 

1  2  Redf.  Wills,  267 ;  Kent  v.  Dunham,  106  Mass.  586 ;  Fowler  v.  Colt,  22 
N.  J.  Eq.  44. 

2  See  Mass.  Gen.  Stats,  c.  92,  §  25 ;  Schouler  Pers.  Prop.  730,  748  ;  2  Kent 
Com.  421 ;  4  ib.  471. 

3  Tubb  V.  Harrison,  4  T.  R.  118  ;  2  Kent  Com.  192;  Freto  v.  Brown,  4  Mass. 
675;  Worcester  v.  Marchant,  14  Pick.  510;  supra,  p.  321. 

*  Cooper  V.  Martin,  4  East,  77  ;  Williams  v.  Hutchinson,  3  Comst.  312  ;  Sharp 
r.  Cropsey,  11  Barb.  224;  Murdock  v.  Murdock,  7  Cal.  511 ;  Gillett  v.  Camp,  27 
Mis.  541 ;  Hussee  v.  Roundtree,  Busbee,  110  ;  Lantz  v.  Frey,  14  Penni  St.  201 ; 
Davis  V.  Goodenow,  27  Vt.  715 ;  Brush  v.  Blanchard,  18  111.  46. 

[  406  ] 


DUTIES  AND  RIGHTS   OF   CHILDREN.  *  378 

exist  between  the  cliild  and  some  other  person;  such  as  a 
grandfather.!  But  the  presumption,  as  between  son-in-law 
and  father-in-law,  is  that  they  deal  on  the  mutual  footing  of 
debtor  and  creditor.^ 

1  Hudson  V.  Lutz,  5  Jones,  217 ;  Butler  v.  Slam,  50  Penn.  St.  456. 

2  Wright  V.  Donnell,  34  Tex.  291 ;  Schoch  v.  Garrett,  69  Penn.  St.  144. 


[407] 


*  379  PARENT   AND    CHILD. 


*379  *  CHAPTER  VL 

ILLEGITIMATE   CHILDREN. 

Illegitimate  children,  or  bastards,  stand  upon  a  different 
footing  from  legitimate  children.  We  have  already  seen  that 
bastards  may  be  legitimated  in  many  of  the  United  States,  by 
the  subsequent  marriage  of  their  parents  or  otherwise.  The 
rights  and  disabilities  of  bastards,  as  such,  and  while  contin- 
uing illegitimate,  require  our  present  attention. 

The  rights  of  a  bastard  are  very  few  at  the  common  law  ; 
children  born  out  of  a  legal  marriage  having  been  from  the 
earliest  times  stigmatized  with  shame,  and  made  to  suffer 
through  life  the  reproach  which  were  rightfully  visited  upon 
those  who  brought  them  into  being.  The  dramatist  depicts 
the  bastard  as  a  social  Ishmaelite,  ever  bent  upon  schemes  for 
the  ruin  of  others,  fully  determined  to  prove  a  villain ;  thus 
fitly  indicating  the  public  estimate  of  such  characters  centu- 
ries ago  in  England.  The  law-writers,  too,  pronounce  the 
bastard  to  be  one  whose  only  rights  are  such  as  he  can  ac- 
quire ;  going  so  far  as  to  demonstrate,  by  cruelly  irresistible 
logic,  that  an  illegitimate  child  cannot  possibly  inherit,  be- 
cause he  is  the  son  of  nobody  ;  sometimes  called  filius  nuUius, 
and  sometimes  fiUus  jjojyuli.^  Coke  seemed  to  concede  a  favor 
in  admitting  that  the  bastard  might  gain  a  surname  by  repu- 
tation, though  none  by  inheritance.^ 

The  most  important  disability  of  an  illegitimate  child,  at 

the  common  law,  is  that  he  has  no  inheritaljle  blood  ;  that  he 

is  incapable  of  becoming  heir,  either  to  his  putative 

*  380    father  or  to  *  his  mother,  or  to  any  one  else  ;  that 

«  Fort,  de  LI.  cli.  40 ;  1  Bl.  Com.  458. 

2  Co.  Litt.  3.  The  very  term  "  bastard,"  said  to  be  derived  from  the  Saxon 
words  "base  start,"  expresses  contempt.     See  Fraser  Parent  &  Child,  119. 

[  408  ] 


ILLEGITIMATE   CHILDREN.  *  380 

he  can  have  no  heirs  but  those  of  his  own  body.^  This 
was  likewise  the  doctrine  of  the  civil  law  ;  the  language  of 
the  Institutes  as  to  spurious  offspring,  'patrem  habere  non  in- 
telliguntur,  dealing  rather  more  gently  with  a  fact  so  ex- 
tremely delicate  and  painful. ^  At  the  old  canon  law  a  bas- 
tard was  treated  as  also  disqualified  from  holding  dignities  in 
the  church ;  but  this  doctrine  became  exploded  long  ago. 
"  And  really,"  adds  Blackstone,  with  warmth,  as  if  to  atone 
for  a  long  and  fallacious  argument  against  legitimation  by  a 
subsequent  marriage,  "  any  other  distinction  but  that  of  not 
inheriting,  which  civil  policy  renders  necessary,  would,  with 
regard  to  the  innocent  offspring  of  his  parents'  crimes,  be 
odious,  unjust,  and  cruel  to  the  last  degree."  ^  And  so  might 
the  commentator  of  the  commentaries  stigmatize  the  efforts 
of  those  who  have  nothing  better  to  urge  against  human 
rights,  than  the  importance  of  preserving  the  symmetry  of 
the  law  unimpaired. 

The  civil  law,  while  offering  in  certain  cases  a  hope  of 
legitimation,  made  a  distinction  between  spurious  offsj)ring 
born  of  promiscuous  intercourse,  and  such  as  were  conceived 
or  born  during  the  marriage  of  one  of  the  natural  parents  ; 
presuming  that  while  the  former  might  be  rendered  legiti- 
mate, the  latter  never  could  become  so.*  And  the  rule  was 
more  severe  with  the  one  class  than  the  other.  This  princi- 
ple is  to  be  traced  in  the  provisions  of  the  Louisiana  Code  ; 
children  whose  father  is  unknown  and  adulterous  or  incestu- 
ous children  having  no  right  of  inheritance,  while  other 
natural  or  illegitimate  children  succeed  to  the  estate  of  their 
mother  in  default  of  lawful  children  or  descendants,  and 
under  certain  conditions  to  the  estate  of  the  father  who  has 
acknowledged  them.^ 

The   well-settled  American   rule,  however,  differs 
considerably  *from  that  of  both  civil  and  common  law.    *  381 
We  have  already  noticed  that  legitimation  by  subse- 
quent marriage  is  a  principle  admitted  very  generally  in  the 

1  2  Kent  Com.  212 ;  .1  Bl.  Com.  459. 

2  Inst.  1,  10,  12;  2  Kent  Com.  ib. 

3  1  Bl.  Com.  459.  *  1  Dig.  5,  23 ;  Eraser  Earent  &  Cliild,  119. 
5  See  2  Kent  Cora.  213. 

[409] 


*381  PARENT   AND    CHILD. 

legislation  of  the  different  States.  So,  too,  are  there  various 
statutes  which  permit  even  bastard  children  to  inherit  from 
the  father  under  certain  restrictions  ;  while  the  generally 
recognized  doctrine  is  partus  sequitur  ventrem,  and  that  the 
illegitimate  child  and  his  mother  shall  mutually  inherit  from 
each  other.  Thus,  by  recent  statutes  in  Maine,  the  mother 
of  an  illegitimate  child  can  inherit.  In  Massachusetts,  the  ille- 
gitimate is  an  heir  to  his  mother.  In  New  York,  in  default  of 
lawful  issue  of  the  mother,  her  illegitimate  children  may  in- 
herit her  real  and  personal  estate.  In  Pennsylvania,  bastards 
shall  bear  the  name  of  the  mother,  and  she  and  they  shall 
inherit  from  each  other.  Certain  kindred  of  the  bastard's 
mother,  in  Georgia  and  Alabama,  had  rights  of  distribution 
under  still  earlier  statutes.  In  Tennessee  and  some  other 
States,  a  liberal  rule  is  applied  with  respect  to  mother  and 
brothers  and  sisters.^  In  Maryland,  illegitimates  may  inherit 
from  the  mother  and  from  illegitimate  brothers  and  sisters  ; 
though  illegitimates  cannot  take  from  the  legitimate,  neither 
legitimates  from  the  illegitimate.^  And,  forty  years  ago, 
Kent  instanced  twelve  States  where  bastards  could  inherit 
from,  and  transmit  to,  their  mothers,  real  and  personal  estate, 
under  some  modifications  ;  while  in  New  York,  the  mother 
and  her  kindred  could  inherit  from  her  bastard  offspring.^ 
There  is  scarcely  a  State  in  the  Union  which  has  not  departed 
widely  from  the  policy  of  the  English  common  law ;  and  stat- 
utes, which  happily  have  required  as  yet  very  little  judicial 
interpretation,  perpetuate  the  record  of  our  Hberal  and  gen- 
erous public  policy  towards  a  class  of  beings  who  were  once 
compelled  to  bear  the  iniquities  of  the  parent. 

The  doctrine  that  a  natural  tie  connects  the  illegitimate 
child   peculiarly   with   his    mother   was   recognized   at    the 

1  Lewis  V.  Eutsler,  4  Ohio  St.  354 ;  Opdyke's  Appeal,  49  Penn.  St.  373 ; 
Hawkins  v.  Jones,  19  Ohio  St.  22 ;  Riley  v.  Byrd,  3  Head,  20. 

2  Miller  v.  Stewart,  8  Gill,  128 ;  Earle  v.  Dawes,  3  Md.  Ch.  230. 

3  See  2  Kent  Com.  11th  ed.  212,  213,  and  notes.  And  as  to  inheritance  from 
the  father,  see  supra,  310.  These  statutes  of  inheritance  are  not  generally  to  be 
extended  so  as  to  apply  to  grandchildren  and  grandparents,  in  a  case  of  illegit- 
imacy. See  Steckel's  Appeal,  64  Penn.  St.  493;  Berry  v.  Owens,  5  Bush, 
452. 

[410] 


ILLEGITIMATE   CHILDREX.  *  381 

civil  law  ;  *  for  under  the  ordinance  of  Justinian,  the  *  382 
bastard  might  to  a  certain  extent  inherit  from  his 
mother.^  So  at  the  common  law  have  the  obligations  of  con- 
sanguinity between  the  mother  and  her  illegitimate  offspring 
been  applied  in  several  instances.  But  as  concerns  any  ex- 
clusive privileges  on  behalf  of  the  mother,  this  does  not  seem 
very  clear ;  for  in  a  case  which  was  decided  in  1786,  the 
rights  of  the  putative  father  seemed  to  be  placed  on  much 
the  same  footing  as  in  other  cases ;  and  his  consent  was 
deemed  jjrima  facie  essential  under  the  marriage  act  of  26 
Geo.  I.  ;  so  was  his  right  apparently  admitted  to  take  his 
illegitimate  child  out  of  the  parish .^ 

There  are,  to  be  sure,  occasional  dicta  to  the  effect  that  the 
putative  father  has  no  common-law  right  to  the  custody  of 
the  child  as  against  the  mother,  and  that  certainly  within  the 
age  of  nurture,  that  is,  under  the  age  of  seven,  the  mother 
has  the  exclusive  right  to  the  custody.  The  more  correct 
statement,  however,  is  that  pauper  children,  whether  legiti- 
mate or  not,  are  under  the  English  system  made  inseparable 
from  the  mother  within  the  years  of  nurture  ;  and  that  at 
common  law  neither  the  putative  father  nor  the  mother  of  an 
illegitimate  child  had  any  exclusive  right  of  guardianship.^ 
The  common-law  cases  cited  in  the  mother's  favor,  are  only 
to  the  effect  that  where  a  bastard  child  within  the  period  of 
nurture  is  in  the  peaceable  possession  of  tlie  mother,  and  the 
putative  father  gets  possession  of  the  child  by  force  or  fraud, 
the  court  will  interfere  to  put  matters  in  the  same  situation 
as  before.^  Both  Lord  Kenyon  and  Lord  Ellenborough  — 
the  latter  as  late  as  1806  —  expressed  doubts  as  to  whether 
the  court  would  take  away  the  custody  of  an  illegitimate 
child  from  the  father  who  had  fairly  obtained  possession,  and 
award  it  to  the  mother.^ 

*  Nor  do  the  later  English  cases  aid  greatly  in  clear-    *  383 

1  Code,  lib.  6,  57.     See  2  Kent  Com.  214. 

2  King  V.  Hodnott,  1  T.  K.  96,  and  cases  cited  passim ;  Macpliers.  Inf.  67. 

3  Macpliers.  Inf.  67. 

4  Rex  V.  Soper,  5  T.  R.  278 ;  Rex  v.  Hopkins,  7  East,  579  ;  Rex  v.  Moseley, 
5  East,  223. 

*  Per  Lord  Kenyon,  Rex  v.  Moseley,  supra  (1798)  ;  per  Lord  Ellenborough, 
Rex  V.  Hopkins,  supra. 

[411] 


*  383  PARENT   AND    CHILD. 

ing  up  the  doubt  on  this  point.  Lord  Mansfield  regarded 
the  law  as  doubtful  in  his  day,  while  himself  inclining 
strongly  to  the  opinion  that  the  putative  father  had  no  right 
to  his  child's  custody.^  In  1841,  a  case  came  before  the 
Court  of  Common  Pleas,  on  a  writ  of  habeas  corjjus,  applied 
for  by  the  mother,  the  child  being  then  between  eleven  and 
twelve  years  of  age,  and  in  the  custody  of  her  putative  father. 
But  the  child  was  deemed  old  enough  to  exercise  her  own 
discretion  as  to  where  she  would  go  ;  and  as  she  appeared 
unwilling  to  go  with  her  mother,  the  court  would  not  permit 
the  mother  to  take  her  by  force.^ 

The  chancery  courts  have  in  several  instances  favored  the 
father  of  an  illegitimate  child  to  the  exclusion  of  his  mother. 
Thus,  while  the  practice  is  not  to  appoint  the  putative  father 
guardian  of  his  illegitimate  child  having  no  property,  unless 
he  makes  a  settlement  upon  him ;  yet,  if  he  does  so,  his  ap- 
pointment is  favorably  regarded.  No  special  regard  seems  to 
have  been  paid  to  the  mother  of  such  children.^  And  while 
the  committee  of  a  lunatic  might  petition  for  an  allowance  for 
his  bastard  offspring,  their  mother  might  not.* 

But  the  language  of  the  new  poor  laws  of  England  (after 
many  changes)  is  favorable  to  the  mother's  special  claims ; 
being  to  the  effect  that  the  mother  is  in  any  case  bound  to 
maintain  her  bastard  child  under  sixteen,  unless  such  child 
meantime  marries*  or  acquires  a  settlement  of  its  own ;  and 
that  such  child  shall  folloAv  the  settlement  of  the  mother.^ 
And  if  being  of  ability,  she  neglects  to  support  such  child, 
whereby  it  becomes  chargeable  to  the  parish,  she  may  be 
punished  under  the  vagrant  acts.^     Another  section  of 

*  384    the  act  *  of  4  &  5  Will.  IV.,  which  provides  that  the 

husband   shall  support  step-children  of  his  wife,  in- 
cludes in  its  terms  illegitimate  as  well  as  legitimate  children, 

1  Strangeways  v.  Robinson,  4  Taunt.  498.  And  see  Pope  v.  Sale,  7  Bing. 
477. 

2  In  re  Lloyd,  3  Man.  c&  Gr.  547.  Comparing  all  the  dicta  in  the  foregoing 
cases  carefully  together,  it  will  be  seen  that  they  are  not  decidedly  against  the 
putative  father's  right  of  custody. 

»  Macphers.  Inf.  110.  4  Re  Joues,  5  Russ.  151. 

5  4  &  5  Will.  4,  c.  76,  §  71. 

6  7  &  8  Vict.  c.  101 ;  8  &  9  Vict.  c.  10. 

[412] 


ILLEGITIMATE   CHILDREN.  *  384 

and  so  far  favors  a  husband's  right  of  custody  ;  but  that  pro- 
vision covers  only  a  very  limited  ground.^ 

The  rights  of  the  parents  of  bastards  are  regulated  to  a 
great  extent  in  the  United  States  by  statute ;  and  our  policy 
is  in  general  more  favorable  than  that  of  England,  as  to  the 
mother's  rights.  An  illegitimate  child  follows  the  settlement 
of  his  mother  in  New  York  and  some  other  States.^  But  in 
Connecticut  the  rule  is  that  a  bastard  is  settled  where  born, 
like  any  other  child,  and  that  his  settlement  follows  that  of 
the  putative  father.^  In  New  York  again,  ever  zealous  in 
guarding  the  interests  of  women  and  children,  it  is  broadly 
ruled  that,  as  against  the  mother  of  a  bastard  child,  the  puta- 
tive father  has  no  legal  right  of  custody ;  that  the  mother,  as 
its  natural  guardian,  is  bound  to  maintain  it ;  and  that  she  is 
entitled  to  control  it.*  Stratagem  and  force  on  the  part  of 
the  putative  father  always  furnish  good  grounds  for  restora- 
tion of  the  child  to  the  mother.^  And  the  Roman,  Spanish, 
and  French  laws  all  deny  the  power  of  the  putative  father 
over  the  illegitimate  child ;  this  principle  being  likewise 
transferred  to  Louisiana  and  other  States,  once  under  the 
civil  law ;  though,  in  Texas  at  least,  the  putative  father  is 
allowed  the  guardianship  of  such  child  after  the  mother's 
death.^  In  some  States,  we  may  add,  the  suj^erior  rights  of 
the  mother  in  binding  out  her  illegitimate  child  are  favorably 
regarded.'^ 

The  common-law  rule,  in  absence  of  statutes,  is  that  the 
putative  father  is  under  no*  legal  liability  to  support  his 
illegitimate  offspring.  But  upon  the  strength  of  the  natural 
or  moral  obligation  arising  out  of  the  relation  of  the  putative 
father   to   his  child,  an  action  at  common   law  lies  for  its 

1  4  &  5  Will.  4,  c.  76,  §  51.  See  comment  of  Maule,  J.,  In  re  Lloyd,  3  Man. 
&,  Gr.  547. 

2  See  2  Kent  Com.  214  ;  Canajoliarrie  v.  Johnson,  17  Johns.  41  ;  Petersham 
V.  Dana,  12  Mass.  429 ;  Lower  Augusta  v.  Salinsgrove,  64  Penn.  St.  166. 

3  Betl)lem  v.  Roxbury,  20  Conn.  298. 

*  People  t'.  Kling,  6  Barb.  366 ;  Robalina  v.  Armstrong,  15  Barb.  247. 

*  Commonwealth  v.  Fee,  6  S.  &  R.  255. 

6  Acosta  V.  Robin,  19  Martin,  387  ;  Barela  v.  Roberts,  34  Tex.  554. 
^  Alfred  v.  McKay,  36  Geo.  440;  McGunigal  v.  Mung,  5  Penn.  St.  269. 

[413] 


*384  PARENT   AND   CHILD. 

*  385  maintenance  *  and  support  upon  an  express  promise  ; 
and  where  one  admits  himself  to  be  the  father  and 
adopts  the  child,  while  such  adoption  continues,  a  promise 
may  be  implied  in  favor  of  the  party  providing  for  it.  He 
may  renounce  the  adoption,  and  terminate  this  implied  as- 
sumpsit, in  which  case  there  is  no  remedy  to  be  pursued, 
unless  under  a  statute.  The  father  can  only  be  charged  then 
upon  his  contract.^  But  upon  his  promise  to  third  persons, 
he  may  be  held  liable  ;  and  a  promise  by  the  putative  father 
to  pay  the  step-father  for  the  child's  support,  past  and  future, 
if  he  will  continue  to  support  it,  is  binding.^ 

But  the  statutes  which  relate  to  the  maintenance  of  bas- 
tard children,  supply  the  want  of  adequate  common-law 
remedies ;  the  main  element  in  such  legislation  being  public 
indemnity  against  the  support  of  such  persons.  Under  the 
old  poor  laws  of  England,  the  mother  had  a  compulsory 
remedy  against  the  putative  father  ;  but  this  was  taken  away 
by  the  act  of  4  &  5  WUl.  IV.  c.  76.  By  the  statute  of  7  & 
8  Vict.  c.  101,  however,  the  mother  is  afforded  relief  once 
more,  and  the  father  may  be  summoned  before  the  petty 
sessions  and  ordered  to  pay  a  weekly  sum  for  the  child's 
maintenance,  and  the  costs  of  obtaining  the  order ;  mainte- 
nance to  last  until  the  child  is  thirteen  years  of  age.  The 
money  is  to  be  paid  to  the  mother,  and  may  be  recovered  by 
distress  and  imprisonment.^  The  provisions  of  law  in  force 
in  most  of  the  United  States  are  borrowed  from  the  older 
English  statutes,  and  our  courts  are  very  generally  invested 
with  plenary  jurisdiction  over  such  matters ;  and  at  the 
instance  of  the  mother  the  father  may  be  coerced  by  arrest 
and  imprisonment,  if  need  be,  into  giving  bonds  and 
*  386    furnishing  *  maintenance    for   his  illegitimate    child ; 

1  Hesketh  v.  Gowing,  5  Esp.  131  ;  Nichols  v.  Allen,  3  Car.  &  P.  36 ;  Eurillio 
V.  Crowther,  7  Dowl.  &  Ry.  612 ;  Cameron  v.  Baker,  1  Car.  &  P.  258 ;  Moncrief 
V.  Ely,  19  Wend.  405. 

2  Wiggins  V.  Keizer,  6  Ind.  252. 

3  And  see  2  &  8  Vict.  c.  85 ;  8  &  9  Vict.  c.  101.  The  order  may  be  ob- 
tained by  a  married  woman,  mother  of  the  bastard.  Regina  v.  Collingwood,  12 
Q.  B.  681.  And  see  Follit  v.  Koetzow,  24  Jur.  051.  In  case  of  death  or  inca- 
pacity of  the  mother,  so  that  the  child  becomes  chargeable  to  the  parish,  the 
order  may  be  enforced  by  the  guardians  or  overseers  of  the  parish. 

[414] 


ILLEGITIMATE   CHILDREN.  *  386 

thus  relieving  the  mother  to  some  extent  of  the  burden 
to  which  his  criminal  misconduct  has  chiefly  contributed, 
and  indemnifying  the  public  against  the  support  of  the  pen- 
niless and  unfortunate.^ 

Past  seduction  has  been  held  sufficient  to  support  a  deed. 
There  is  an  old  English  case,  where  equity  compelled  the 
specific  performance  of  a  deed-poll,  made  by  a  man  who  had 
seduced  a  woman  and  had  a  child  by  her ;  the  writing  prom- 
ising to  pay  £2,000  after  his  death  for  the  purchase  of  an 
annuity  for  the  mother  and  her  child  for  their  lives.  Both 
the  man  and  the  child  had  died  before  the  suit  was  brought.^ 
In  Pennsylvania,  the  same  principle  is  pushed  even  farther  ; 
for  it  is  ruled  that  seduction  of  a  female  and  begetting  a  bas- 
tard is  sufficient  consideration  to  support  a  man's  promise  to 
give  bonds  for  a  sum  of  money .^  But  there  must  be  noth- 
ing oppressive  or  unfair  in  such  transactions,  and  if  the 
promise  be  solely  in  consideration  of  stopping  a  criminal 
prosecution,  it  is  void.*  Nor  ought  agreements  as  to  the 
wages  of  sin  to  be  favored.^ 

Whatever  may  be  the  mother's  legal  responsibility  for  the 
maintenance  of  her  bastard  child  while  she  lives,  it  appears 
that  an  action  cannot  be  maintained  against  the  adminis- 
trator of  her  estate  for  the  child's  maintenance  subsequently 
to  her  death.^ 

A  person  standing  m  loco  parentis  may  svieper  quod  servitium 
for  the  abduction  of  his  daughter's  illegitimate  child.'  But 
a  parent  is  not  bound  to  support  the  illegitimate  offspring  of 

»  2  Kent  Com.  215,  and  cases  cited  ;  State  v.  Beatty,  66  N.  C.  648;  Musser  v. 
Stewart,  21  Oliio  St.  363  ;  Marlett  v.  Wilson,  80  Ind.  240 ;  Barber  v.  State,  24 
Md.  383  ;  Wiieelwright  i'.  Greer,  10  Alien,  389.  In  some  States  certain  persons 
are  authorized  to  make  complaint  against  the  father  for  maintenance  of  the  bas- 
tard, where  the  mother  refuses  or  neglects' to  do  so.     lb. 

2  Marchioness  of  Annandale  v.  Harris,  2  P.  Wms.  433.  And  see  Turner  v. 
Vaughan,  2  Wils.  339. 

3  Slienk  V.  Mingle,  13  S.  &  R.  29.  And  see  Phillipi  v.  Commonwealth,  18 
Penn.  St.  116;  Knye  v.  Moore,  1  Sim.  &  Stu.  IGl. 

*  lb.     But  see  Merritt  i'.  Fleming,  42  Ala.  234. 

*  See  Binnington  v.  Wallis,  4  B.  &  Aid.  650. 

6  Ruttinger  v.  Temple,  4  B.  &  S.  491.    And  see  supra,  pp.  888,  884. 
^  Moritz  V.  Garnhart,  7  Watts,  802. 

[  415  ] 


*  386  PARENT   AND    CHILD. 

his  children.^  Relatives  more  distant  than  parents  do  not, 
on  the  whole,  seem  to  have  much  consideration  in  matters  of 
this  sort ;  and  it  is  even  possible  that  the  assumption  of  a 
family  name  by  an  illegitimate  member  is  a  grievance  for 
which  the  offended  relatives  have  no  redress.^ 

Bequests  to  illegitimate  children,  since  they  are  not  con- 
sidered as  relatives,  are  not  favored  in  English  law.     There 
have  been,  it  is  true,  certain  dicta  to  the  contrary  ;  but 

*  387    Lord  Eldon  *  was  of  the  opinion  that  there  must  be 

something  to  show  that  the  testator  put  himself  in  loco 
parentis;  and  it  has  since  been  decided  that  an  illegitimate 
child  is  not  merely,  as  such,  within  the  rule,  for  he  is  "a 
stranger  to  the  testator."  ^  On  the  ground  of  uncertainty  in 
the  person,  a  bequest  to  an  unborn  legitimate  child  was  long 
considered  objectionable ;  but  Lord  Eldon  and  others  main- 
tained that  legacies  given  to  the  unborn  illegitimate  child  of 
a  particular  woman  then  pregnant  would  be  good,  because 
the  uncertainty  of  description  could  here  be  obviated.*  But 
it  is  now  well  settled  in  England  that  a  devise  or  bequest  in 
favor  of  other  future  illegitimate  children  is  void.^ 

Illegitimate  children  may  undoubtedly  take  by  purchase  as 
persons  designated,  if  sufficiently  described.^  The  question  in 
cases  of  this  sort  is  really  one  of  intention.  Prima  facie  ^  the 
term  "  children  "  in  a  will,  however,  is  intended  to  mean  legiti- 
mate children  ;  and  if  there  are  legitimate  children,  or  if  it 
be  possible  that  there  should  be  legitimate  children  of  the 
person  named,  the  English  rule  is  that  no  illegitimate  child 


1  Hillsborough  v.  Deering,  4  N.  H.  86. 

2  Du  Boulay  v.  Du  Boulay,  L.  R..  2  P.  C.  430.  See  Vane  v.  Vane,  L.  R.  8  Ch. 
383. 

3  Lowndes  v.  Lowndes,  15  Ves.  304;  Perry  v.  Whitehead,  6  Ves.  547;  contra, 
per  Lord  Alvanley,  Cricket  v.  Dolby,  3  Ves.  30 ;  Macpiiers.  Inf.  238. 

4  Macpiiers.  Inf.  570,  and  cases  cited ;  Gordon  v.  Gordon,  1  Mer.  141 ;  Daw- 
son V.  Dawson,  6  Madd.  292. 

5  Beachcroft  v.  Beachcroft,  1  Madd.  430;  Knye  v.  Moore,  1  Sim.  &  Stu. 
61;  Wilkinson  r.  Wilkinson,  1  You.  &  Coll.  657;  Medworth  v.  Pope,  27 
Beav.  71. 

«  Blodwell  V.  Edwards,  Cro.  Eliz.  509 ;  Co.  Litt.  36  ;  Peachey  Mar.  Settl. 
885,  H.;  Clifton  v.  Goodbun,  L.  R.  6  Eq.  278;  Crook  v.  Hill,  L.  R.  6  Ch.  311. 

[416] 


ILLEGITIMATE   CHILDREN.  *  387 

can  take  under  the  description  of  children.^  Yet,  if  they 
have  acquired  the  reputation  of  being  the  children  of  a 
particular  person,  they  are  capable  of  taking  under  the 
description  of  "  children,"  or  "  daughters."  ^  In  3Iedworth  v. 
Pope,  the  rule  was  concisely  stated  to  be,  that  an  illegitimate 
child  in  esse  or  en  ventre  sa  mere  may,  if  properly  de- 
scribed, take  the  benefit  of  a  devise  or  bequest,  and 
*  the  court  will  not  inquire  as  to  his  parentage  or  ori-  *  388 
gin ;.  but  that  in  respect  of  future  illegitimate  chil- 
dren, the  law  will  not  let  them  take  under  any  description 
whatever.  ''  The  reason  why  the  English  law  so  holds  is, 
that  it  considers  such  a  provision  for  future  illegitimate  chil- 
dren as  contra  bonos  mores."  ^ 

In  this  country,  the  tendency  seems  to  be  so  far  favorable 
to  illegitimate  children  as  to  regard  wills  made  in  their  favor 
with  the  same,  or  nearly  the  same,  consideration  as  all  others. 
And  our  courts  regard  bastards  as  having  strong  claims  to 
equitable  protection,  notwithstanding  the  criminal  indulgence 
of  their  parents.  In  several  important  cases,  specific  per- 
formance of  voluntar}^  settlements  made  by  the  father  in 
their  favor,  have  been  decreed.*  And  a  devise,  in  specific 
terms,  to  an  unborn  natural  child  of  a  woman  then  pregnant, 
is  sustained  here  as  in  England.^     But  whether  our  tribunals 

1  Gill  V.  Shelley,  2  Russ.  &  My.  336  ;  Tn  re  Wells's  Estate,  L.  R.  6  Eq.  599; 
Paul  V.  Children,  L.  R.  12  Eq.  16. 

-  Peaehey  Mar.  Settl.  885,  n.,  and  cases  cited;  Evans  v.  Davies,  7  Hare,  501  ; 
Owen  I'.  Bryant,  2  De  G.,  M.  &  G.  697;  Hartley  v.  Tribber,  10  Beav.  510; 
Leigh  V.  Byron,  1  Sm.  &  Gif.  486 ;  Tugwell  v.  Scott,  24  Beav.  141 ;  Worts  v. 
Cubitt,  19  Beav.  421.     And  see  Williamson  v.  Codrington,  1  Ves.  Sen.  511. 

^  Per  M.  R.,  in  Medworth  v.  Pope,  27  Beav.  71.  Further  important  illustra- 
tions of  the  equity  doctrine  may  be  seen  in  the  recent  cases  of  Lambe  v.  Eames, 
L.  R.  6  Ch.  597  ;  Holt  v.  Sindrey,  L.  R.  7  Eq.  170 ;  Savage  v.  Robertson,  L.  R. 
7  Eq.  176.  And  as  to  the  application  of  27  Eliz.  c.  4,  to  marriage  settlements 
for  bastards,  see  Clarke  i\  Wright,  6  Hurl.  &  Nor.  849.  As  to  legacies  and 
devises,  see  Beachcroft  v.  Beachcroft,  1  Madd.  430,  and  cases  cited  ;  Durrant  v. 
Friend,  11  E.  L.  &  Eq.  2 ;  Owen  v.  Bryant,  13  E.  L.  &  Eq.  217  ;  4  Kent  Com. 
414;  Bagley  o.  Mollard,  1  Russ.  &  My.  581. 

*  Gardner  v.  Heyer,  2  Paige,  11  ;  Bunn  v.  Winthrop,  1  Johns.  Ch.  338  ;  Har- 
ten  V.  Gibson,  4  Desaus.  139  ;  2  Kent  Com.  210;  Shearman  v.  Angel,  Bail.  Eq. 
351  ;  Collins  v.  Hoxie,  9  Paige,  88. 

*  Knye  v.  Moore,  5  Harr.  &  Johns.  10.  As  to  legacies  and  devises  to  illegiti- 
mate children  under  American  laws,  see  4  Kent  Com.  413,  414,  and  cases  cited ; 
Hughes  V.  Knowlton,  37  Conn.  429. 

27  [  417  ] 


*  388  PARENT  AND   CHILD. 

would  sanction  a  bequest  to  other  unborn  illegitimate  chil- 
dren, may  admit  of  doubt ;  provided  such  child  were  never 
legitimated  by  subsequent  marriage.  For,  after  all,  there 
must  be  some  discrimination  made  against  criminal  inter- 
course. 

Testamentary  guardianship,  of  which  we  are  to  speak  in 
another  connection,  is  of  such  a  nature  that  a  father  cannot 
by  his  will  appoint  a  guardian  for  his  illegitimate  children.^ 

1  Sleeman  v.  Wilson,  L.  R.  13  Eq.  36. 

[  418  ] 


GUARDIANS  IN  GENERAL.  *  389 


*PAKT   lY.  *389 

GUARDIAN    AND    WARD. 


CHAPTER    I. 

OF   GUARDIANS   IN   GENERAL  ;    THE   SEVERAL    KINDS. 

The  guardian  is  a  person  intrusted  by  law  with  the  interests 
of  another,  whose  youth,  inexperience,  mental  weakness,  and 
feebleness  of  will  disqualify  him  from  acting  for  himself  in 
the  ordinary  affairs  of  life,  and  who  is  hence  known  as  the 
ward. 

Guardianship  usually  applies  to  minor  children ;  and  in 
this  sense  the  guardian  may  be  either  their  natural  protector, 
whose  authority  is  founded  upon  universal  law,  or  some  person 
duly  chosen  to  act  on  their  behalf.  Thus,  the  father  (and 
sometimes  the  mother)  exercises  the  right  of  custody  and 
nurture  as  the  child's  natural  guardian  ;  while,  if  the  parents 
are  dead,  some  one  must  be  selected  to  sujiply  their  place. 
And  since  the  parental  control  does  not  extend  to  the  estate 
of  a  minor,  the  appointment  of  a  guardian  may  be  both  neces- 
sary and  proper,  when  property  becomes  vested  in  a  child 
under  age.  Guardianship  applies  also  at  the  present  day  to 
idiots,  lunatics,  spendthrifts,  and  the  like ;  and  the  guardian 
of  such  person  derives  his  authority  from  statute  law  and  a 
special  appointment.  This  guardian  is  sometimes  designated 
as  the  committee. 

The  law  of  guardianship  is  most  naturally  divided   into 
guardianship  of  the  person,  and  guardianship  of  the 
estate.      *  Guardianship  of   the   person   is  a  relation    *  390 
essentially   the   same   as   that   of    parent   and    child, 

[419] 


*  390  GUARDIAN  AND  WARD. 

though  not  without  some  important  differences,  as  we  shall 
see  hereafter.  Hence  the  guardian  has  been  called  "  a  tem- 
porary parent."  ^  Guardianship  of  the  estate  bears  a  closer 
resemblance  to  trusteeship  ;  guardians  and  trustees  being  alike 
bound  to  manage  estates  with  fidelity  and  care,  under  the 
supervision  and  direction  of  the  chancery  courts.  The  same 
person  is  often  guardian  of  both  the  person  and  estate  of  the 
ward  ;  but  not  necessarily,  for  these  may  be  kept  distinct.  So, 
too,  there  may  be  joint  guardians,  as  in  other  trusts. 

The  law  of  guardianship,  in  England,  is  one  of  irregular 
growth.  Guardians,  until  chancery  jurisprudence  became  fully 
developed,  were  recognized  only  for  certain  limited  purposes. 
Their  powers  were  restricted,  and  new  classes  were  created 
from  time  to  time,  as  the  exigency  arose.  One  species  of 
guardianship  would  fall  into  disuse  and  another  spring  up  in 
its  place.  Hence  it  is  found  difficult  to  attempt  a  classification, 
or  reduce  the  general  authority  of  guardians  to  a  definite  sys- 
tem. The  latest  English  text-writer  enumerates  no  less  than 
eleven  different  kinds  of  guardians,  many  of  which  are  obso- 
lete, and  others  of  merely  local  application.-  Among  them  may 
be  mentioned  guardianship  in  chivalry^  an  incident  of  the  feudal 
tenure,  more  in  the  nature  of  a  hardship  than  a  privilege,  so 
far  as  the  ward  was  concerned,  which  was  finally  abolished  in 
the  time  of  Charles  II. ;  guard iansJiijj  hy  special  custom^  which 
was  confined  to  London  and  certain  other  localities,  and  ap- 
pears to  exist  no  longer  ;  guardianship  hy  ap>2Jointment  of  the 
sjjiritiLal  courts,  traces  of  which  still  exist  in  the  appointment  of 
administrators  durante  minore  cetate  ;  guardianship  hy  preroga- 
tive, applicable  only  to  the  royal  family ;  and  guardian- 

*  391    ship  hy  *  election  of  the  infant,  which  appears  to  us  more 

properly  considered  at  this  day  in  connection  with  the 
appointment  of  chancery  guardians.  But  guardianship  hy 
nature    and    nurture,   guardianship   in   socage,    testamentary 

1  1  Bl.  Com.  460;  2  Kent  Com.  220. 

2  Macphers.  Inf.  2  et  seq.,  to  which  the  reader  is  referred  for  a  full  account  of 
these  kinds  of  guardianship,  including  guardianship  under  stat.  4  &  5  P.  &  M. 
c.  8,  alluded  to  in  1  Bl.  Com.  461,  and  repealed  by  9  Geo.  4,  c.  31.  See  also 
1  Bl.  Com.  461,  and  Harg.  notes. 

[420] 


GUARDIANS  IN  GENERAL.  *  391 

guardianship,  and  chancery  guardianship,  require  special  con- 
sideration, and  these  will  be  taken  up  in  order. 

Guardianship  by  nature  and  nurture  denotes  hardly  more 
or  less  than  the  natural  right  of  parents  to  the  care  and 
custody  of  their  children.  It  has  been  usual  to  treat  of 
guardians  by  nature  as  distinct  from  guardians  by  nurture  ; 
but  in  reality  the  latter  constitute,  for  practical  purposes, 
only  a  species  of  the  former.  Mr.  Macpherson  considers 
them  together,  and  doubts  whether  guardianship  by  nature, 
as  known  in  the  old  law,  has  existed  since  the  time  of 
Charles  II.,  when  feudal  tenures  were  abolished  ;  for  it 
appears  to  have  originated  in  the  practice  of  selling  the 
marriage  of  the  heir.^ 

Guardianship  by  nature  and  nurture  belongs  exclusively  to 
the  parents :  first,  to  the  father,  and,  on  his  death,  to  the 
mother.  The  father's  right  was  formerly  preferred  to  the 
mother's  in  all  cases,  while  the  modern  tendency  is  otherwise. 
The  office  of  natural  guardian  lasted  during  the  minority  of  the 
child ;  but  guardianship  by  nurture  ceased  when  he  attained 
the  age  of  fourteen.  So  guardianship  by  nature  applied  to  the 
heir  apparent  or  presumptive,  and  guardianship  by  nurture  to 
the  other  children.  Guardianship  by  nature  was  something 
higher  than  guardianship  by  nurture.^  But  it  is,  nevertheless, 
clear  that  the  father  has  a  right,  recognized  by  general  law,  to 
the  custody  of  all  his  children,  not  only  during  the  period  of 
nurture,  but  until  the  age  of  majority.  So,  too,  the  mother, 
if  not  superseded  by  the  infant's  election  at  fourteen,  or  by 
the  appointment  of  a  new  guardian,  has,  in  the  absence 
of  the  father,  the  legitimate  care  of  the  child  for  the  same 
period.^ 

*  The  authority  of  such  guardians  extends  only  to    *  392 
the  ward's  person.    They  have  no  right  to  intermeddle 
with  his  property.'*     Blackstone  says,  that  if  an  estate  be  left 

1  Macphers.  Inf.  52,  58.  See  also  1  Bl.  Com.  401,  and  Harg.  notes  1  &  3;  2 
Kent  Com.  220,  221. 

■•J  1  Bl.  Com.  401,  and  Ilarg.  notes  ;  2  Kent  Com.  220,  221. 

3  Macphers.  Inf.  01,  05  ;  snpra,  pp.  332-342. 

4  1  Bl.  Com.  401,  and  Harg.  notes  ;  2  Kent  Com.  220,  221 ;  Hyde  v.  Stone,  7 
Wend.  354;  Kline  v.  Beebe,  0  Conn.  40  4  ;  Fonda  v.  Van  Home,  15  Wend.  031. 

[421] 


*  392  GUARDIAN  AND  WARD. 

to  an  infant,  the  father  is,  by  common  law,  the  guardian,  and 
must  account  to  his  child  for  the  profits.  But  this  is  only 
because  the  law  holds  him  and  all  others  responsible  as  a 
quasi  guardian  ;  and  it  is  well  settled  at  the  present  day,  that 
if  a  child  becomes  vested  with  property  during  his  father's 
lifetime,  there  is  no  one  strictly  authorized  to  take  it  until  a 
guardian  has  been  duly  appointed. 

Guardianship  by  nature  and  nurture  is  inferior  to  guardian- 
ship in  socage  ;  and  it  yields  to  every  kind  of  guardianship 
which  exists  by  strict  appointment,  so  far  as  the  ward's  prop- 
erty is  concerned,  though  not  necessarily  as  to  his  person. 

Guardianship  in  socage  arises,  at  common  law,  whenever  an 
infant  under  fourteen  acquires  title  to  real  estate  ;  the  chief 
object  of  the  trust  being  the  protection  of  such  property  and 
the  instruction  of  the  young  heir  in  the  pursuit  of  agriculture.^ 
It  applies  only  when  the  infant  has  land  by  descent,  and  can- 
not exist  if  his  estate  be  merely  personal.  His  title,  too,  must 
be  legal  and  not  merely  equitable  ;  hence  it  would  seem  that 
there  cannot  be  a  guardian  in  socage  where  the  interest  of  the 
ward  is  only  reversionary.^  This  species  of  guardianship  was 
anciently  assignable,  so  far  at  least  as  the  custody  of  the  infant 
was  concerned  ;  but  by  the  doctrine  and  practice  of  later  times 
it  became  regarded  as  a  strictly  personal  trust,  neither  trans- 
missible by  succession,  nor  devisable,  nor  assignable.^ 

The  duty  of  the  guardian  in  socage  is  to  take  possession  of 

the  heir's  person  and  real  estate,  to  receive  the  rents  and  profits 

until  the  heir  reaches  the  age  of  fourteen,  to  keep  his 

*  393    evidences  *  of  title  safely,  and  to  bring  him  up  well.^ 

His  powers  are  commensurate  with  his  duties.  He 
acquires  by  virtue  of  his  office  an  actual  estate  in  the  ward's 
land,  though  not  to  his  own  use  ;  ^  he  may  gain  a  settlement 
by  actual  residence  upon  it ;  ^  and  he  can  grant  leases  termi- 

1  1  Bl.  Com.  461,  and  Harg.  n.;  2  Kent  Com.  220;  Dagley  v.  Tolferry,  1  P. 
Wms.  285. 

2  Macpliers.  Inf.  19 ;  2  Bl.  Com.  88. 

3  Macpliers.  Inf.  20  et  seq. ;  2  Bl.  Com.  461,  and  Ilarg.  n. ;  2  Kent  Com.  223. 
*  Co.  Litt.  89  ;  Macpliers.  Inf.  28. 

5  Plowd.  ch.  293  ;  Macpliers.  Inf  28  ;  Rex  v.  Sutton,  3  Ad.  &  El.  597. 

6  Rex  V.  Oakley,  10  East,  491 ;  Macpliers.  Inf.  28. 

[422] 


GUARDIANS  IN  GENERAL.  *  393 

nable,  and  perhaps  even  void,  when  the  ward  reaches  the 
ao-e  of  fourteen.'  A  guardian  in  socage  cannot  be  removed 
from  office,  but  the  ward  may  supersede  him,  at  this  age,  by 
a  guardian  of  his  own  choice. ^ 

Guardianship  in  socage  ha^  been  said  to  extend  to*  the 
heir's  personal  property ;  but  there  is  insufficient  legal  au- 
thority for  such  a  supposition,  though  it  is  likely  that  the 
farm-stock  and  household  chattels  of  the  ward  were  included ; 
and  when  this  guardianship  was  common,  personal  property 
consisted  of  little  else.^ 

One  peculiarity  of  this  guardianship  was,  that  the  trust 
belonged  only  to  such  next  of  blood  to  the  child  as  could  not 
possibly  inherit,  and  it  devolved  upon  him  without  appoint- 
ment ;  the  common  law,  with  a  characteristic  distrust  of 
human  nature,  deeming  it  imprudent  to  confide  the  child's 
interests  to  one  who  expected  the  succession.  For,  as  For- 
tescue  and  Sir  Edward  Coke  affirmed,  to  commit  the  custody 
of  the  infant  to  such  a  person,  was  like  giving  up  a  lamb  to 
a  wolf  to  be  devoured."^  Guardianship  in  socage  has  passed 
into  disuse,  though  it  cannot  be  said  to  have  been  actually 
abolished.  , 

Testamentary  guardianship  was  instituted  by  the  statute 
of  12  Car.  II.  c.  24,  and  for  this  reason  testamentary  guar- 
dians are  sometimes  called  statute  guardians.^  This 
statute  provided  *  that  any  father,  whether  an  infant  *  394 
or  of  full  age,  might,  by  deed  executed  in  his  lifetime, 
or  by  his  last  will  and  testament,  dispose  of  the  custody  and 
tuition  of  his  child,  either  born  or  unborn,  to  any  person  or 
persons  in  possession  or  remainder,  other  than  popish  recu- 
sants ;  such  custody  to  last  till  the  child  attained  the  age  of 
twentj'-one,  or  for  any  less  period,  and  to  comprehend,  mean- 
time, the  entire  management  of  his  estate,  both  real  and  per- 
sonal.    So  far  as  popish  recusants  are  concerned,  this  statute 

1  Bac.  Abr.  Leases,  i.  9  ;  1  Ld.  Raym.  131 ;  Rex  v.  Sutton,  5  Nev.  &  M.  353 
Macpliers.  Inf.  35,  3G. 

2  Co.  Litt.  89  a  ;  Macpliers.  Inf.  41. 

3  Macpliers.  Inf.  31  ;  Bedell  v.  Constable,  Vaugh.  185.     But  see  Ilarg.  n.  G7 
to  Co.  Litt.  89. 

*  Co.  Litt.  88  6;  1  Bl.  Cora.  462.  5  1  Bl.  Com.  4G2. 

[423] 


*  394  GUARDIAN  AND   WARD. 

has  since  been  modified  ;  and  all  religions  disabilities  as  to  the 
office  are  now  removed  ;  ^  and  since  the  statute  of  1  Vict.  c. 
26,  an  infant,  though  the  father,  cannot  exercise  the  right  of 
testamentary  appointment ;  otherwise,  the  statute  remains  in 
forcfe.  Under  this  English  law  it  matters  not  what  are  the 
father's  religious  ojjinions.^  But  a  mother  cannot  appoint, 
nor  a  putative  father,  nor  a  person  in  loco  parentis.^ 

The  important  question  arises,  under  this  statute,  whether 
the  words  "  by  deed  executed  in  his  lifetime  "  permits  the 
father  to  dispose  of  his  children  by  any  instrument  not  testa- 
mentary he  may  see  fit  to  make.  Lord  Eldon  was  of  the 
opinion  that  he  could  not,  but  was  confined  to  a  testamentary 
instrument  in  the  form  of  a  deed,  which  cannot  operate  dur- 
ing life  and  may  be  revoked  at  pleasure.*  Such  is  doubtless 
the  English  law  at  the  present  day.^ 

Testamentary  guardianship  gives  the  custody  of  the  ward's 
person,  and  of  all  his  real  and  personal  estate  ;  and  it  em- 
braces not  only  such  property  as  comes  to  the  ward 

*  395    through  descent,  *  devise,  bequest,  or  inheritance  from 

the  father,  but  all  that  he  may  acquire  from  any  person 
whomsoever,  and  whether  real  or  personal.  This  shows  that 
the  guardian's  interest  is  derived  not  from  the  father,  but 
from  the  law  itself,  for  the  father  could  give  him  no  interest 
over  that  which  was  never  his  own.^ 

Besides  having  the  advantage  of  full  control  over  the 
ward's  entire  estate,  the  testamentary  guardian  stands  better 
than  the  guardian  in  socage,  inasmuch  as  his  power  lasts  until 
the  ward  reaches  his  majority,  unless  the  father  has  seen  fit 
to  limit  his  trust  to  a  less  period. 

Testamentary  guardianship,  as  now  understood,  was  un- 
known to  the  common  law.     Lord  Alvanley  said,  in  Ux  parte 

1  31  Geo.  3,  c.  82;  4  Mont.  &  C.  687  ;  Corbet  v.  Tottenham,  1  Ball  &  B.  59. 

2  Villareal  rf.  Hellish,  2  Swanst.  538. 

3  Macphers.  Inf.  83 ;  1  Bl.  Com.  462,  Harg.  n.  ;  Vaugh.  180;  3  Atk.  519; 
supra,  p.  388. 

4  E.r  parte  Earl  of  Echester,  7  Ves.  367 ;  Earl  of  Shaftesbury  v.  Lady  Han- 
nam.  Finch  Rep.  323. 

5  Macpherson  intimates  a  different  opinion.  See  Macphers.  Inf.  84  ;  Lecone 
V.  Sheires,  1  Vern.  442. 

«  Macphers.  Inf.  91.     See  also  Gilliat  v.  Gilliat,  3  Phillim.  222. 

[424] 


GUARDIANS  IN  GENERAL.  *  395 

Ilchester :  "  It  is  clear,  by  the  common  law,  a  man  could  not, 
by  any  testamentary  disposition,  affect  either  his  land  or  the 
guardianship  of  his  children.  The  latter  api^ears  never  to 
have  been  made  the  subject  of  testamentary  disposition  till 
the  statute  12  Charles  II."  ^  But  it  seems  probable,  from 
some  expressions  of  Lord  Coke,  that,  so  far  as  the  custodj'^  of 
the  Avard's  person  was  concerned,  though  not  as  to  his  lands, 
testamentary  dispositions  were  not  unknown  to  the  old  com- 
mon law,  and  that  this  testamentary  guardian,  sometimes 
confounded  with  the  guardian  for  nurture,  had  the  care  of 
the  child  until  he  reached  the  age  of  fourteen,  with  power 
to  dispose  of  his  chattels.^ 

Guardians  by  appointment  of  a  court  of  equity,  or  chancery 
guardians^  as  they  are  termed,  have,  within  the  last  century, 
assumed  such  imj)ortance,  as  almost  to  supersede  in  the  Eng- 
lish practice  the  other  kinds,  except  perhaps  the  testamentary 
guardian.  The  earliest  known  instance  of  such  an  appoint- 
ment occurred  in  1696.^  Blackstone  speaks  of  the  practice 
in  his  day  as  applicable  chiefly  to  guardians  with  large  estates, 
who  sought  to  indemnify  themselves  and  to  avoid  disagree- 
able contests  with  their  wards,  by  placing  themselves 
*  under  the  direction  of  the  Court  of  Chancery.'*  The  *  396 
origin  of  this  guardianship  is  obscure.  Mr.  Hargrave 
considered  it  an  act  of  usurpation  by  the  Lord  Chancellor, 
but  admitted  the  jurisdiction  to  have  been  fully  establislied 
in  his  tinie.^  Fonblanque  warmly  controverts  the  charge  of 
usurpation,  claiming  that  the  jurisdiction  exercised  by  the 
Court  of  Chancery  over  infants  flows  from  its  general  author- 
ity, as  delegated  by  the  crown.*^  This  latter  view  has  met 
with  the  best  judicial  approval ;  for,  as  Lord  Hardwieke  and 
others  have  expressed  it,  the  State  must  place  somewhere  a 
superintending  power  over  those  who  cannot  take  care  of 
themselves  :  and  hence  chancery  necessarily  acts,  represent- 

1  7  Ves.  370. 

2  Co.  Litt.  87  h]  Co.  Cop.  §  23;  Macpliers.  Inf.  68.  ; 
*  Case  of  Hampden.     See  Co.  Litt.  88  b,  Harg.  n. 

4  1  Bl.  Com.  463.  5  Co.  Litt.  89  a,  Harg.  n.  70. 

6  2  Fonb.  Eq.  228,  n.,  oth  etl.  ;  2  Story  Eq.  Juris.  §  1333. 

[425] 


*  396  GUARDIAN  AND  WARD. 

ing  tlie  sovereign  as  parens  patrice.^  From  the  peculiar  na- 
ture and  restrictions  of  the  other  kinds  of  guardianship,  many 
orphans,  whose  fathers  had  failed  to  appoint  a  testamentary 
guardian  for  them,  would  be  otherwise  without  protection 
either  of  person  or  property.  Whatever  may  he  the  origin 
of  the  jurisdiction  by  virtue  of  which  courts  of  chancery 
appoint  guardians  in  such  cases,  the  right  of  making  such 
appointments,  and  in  general  of  controlling  the  persons  and 
estates  of  minors,  has  long  been  firmly  established,  and  cannot 
at  this  day  be  shaken. 

An  infant  is  constituted  a  ward  in  chancery  whenever  any 
one  brings  him  in  as  party  plaintiff  or  defendant,  by  a  bill 
asking  the  directions  of  the  court  concerning  his  person  or 
estate,  or  the  administration  of  property  in  which  he  is  inter- 
ested.2  jj^  ^}jig  character  he  is  treated  as  under  its  special 
protection.  Again,  a  petition  may  be  presented  for  the  ap- 
pointment of  a  chancery  guardian,  alleging  that  the  infant 
has  estate,  real  or  personal.  But  the  mere  appointment  of  a 
guardian,  in  this  instance,  will  not  make  him  a  ward  in 

*  397    chancery.^     *  Where  a  suit  is  pending,  the  court  ap- 

points a  guardian  of  the  person  only ;  in  other  cases  a 
guardian  of  the  person  and  estate^  So  chancery  will  appoint 
a  guardian  on  petition,  where  testamentary  guardians  decline 
to  act ;  and  if  necessary,  determine  on  petition  the  right  of  a 
guardian  already  appointed.^ 

As  to  the  general  jurisdiction  of  chancery  over  infants,  it 
may  be  observed  that  in  the  appointment  and  removal  of 
guardians,  in  providing  suitable  maintenance,  in  awarding 
custody  of  the  person,  and  in  superintending  the  management 
and  disposition  of  estates,  the  chancery  court  wields  large 
powers  for  the  benefit  of  the  young  and  helpless.  This  juris- 
diction being  clear  of  technical  rules  and  dependent  upon  the 
discretion  of  the  Chancellor,  adapts  itself  far  more  readily  to 
the  various  grades  of  society,  the  intention  of  testators,  the 
wants  and  wishes  of  the  infants  themselves,  and  the  different 

1  Butler  r.  Freeman,  Au)bl.  301.     See  Lord  Thurlow,  in  Powell  v.  Cleaver, 
2  Bro.  C.  C.  499  ;  Lord  Eldon,  in  De  Mannevilie  v.  De  MannevillB;  10  Ves.  62. 

2  Macphers.  Lif.  103  ;  Auibl.  302,  n. 

3  Macphers.  Inf.  104.  ^  lb.  105.  »  lb.  104. 

[  426  ] 


GUARDIANS  IN  GENERAL.  *  397 

varieties  of  property,  than  all  the  other  guardianships  com- 
bined.i  By  compelling  trust  officers  to  give  security  to  in- 
vest under  its  direction,  and  to  keep  regular  accounts,  the 
court  exerts  a  wholesome  restraint  on  the  ward's  behalf, 
while  at  the  same  time  it  arms  the  guardian  against  all  at- 
tacks of  a  capricious  heir,  by  affording  its  sanction  to  his 
official  acts. 

Chancery  guardians  are,  in  general,  only  appointed  where 
there  is  property ;  but  this  is  because  guardianship  can 
scarcely  be  necessary  otherwise.  Chancery,  as  Lord  Eldon 
observed,  cannot  take  on  itself  the  maintenance  of  all  the 
children  in  the  kingdom.^  Hence  persons  desiring  to  call  in 
the  authority  of  the  court  for  the  protection  of  an  infant 
sometimes  resort  to  the  expedient  of  settling  a  sum  of  money 
upon  him.3  The  great  objection  to  chancery  guardian- 
ship is  its  expense,  and  *  the  lavish  outlay  of  money  *  398 
which  becomes  requisite  at  every  step  renders  the  prac- 
tical benefit  to  the  minor  often  questionable.  Less  cumbrous 
machinery  would  remedy  this  evil.  There  are  some  English 
statutes  relating  to  the  poor,  the  employment  of  apprentices, 
and  the  like,  which,  in  connection  with  the  Avrit  of  habeas 
corpus,  are  designed  to  supersede,  in  a  measure,  the  necessity 
of  personal  guardianship,  for  those  who  are  without  property 
and  yet  need  protection."* 

Guardianship  by  election  of  the  infant  deserves  a  passing 
notice.  We  have  seen  that  the  infant  in  socage  had  the 
right  of  choosing  a  guardian  at  the  age  of  fourteen.  This 
age  was  recognized  also  as  the  limit  to  guardianship  for  nur- 
ture ;  the  law  choosing  to  yield  somewhat  to  the  ward's  dis- 
cretion thenceforth.^  The  socage  ward  might  therefore,  if  he 
had  no  testamentary  guardian,  choose  one  to  act  on  his  be- 
half until  majority,  by  executing  a  deed  for  that  purpose. 
But  little  is  really  known  on  this  sul)ject,  and  the  instances 

I  1  Bl.  Com.  463,  Harg.  n. 

^  Wellcslcy  v.  Duke  of  Beaufort,  2  Russ.  21. 

»  Macnliers.  Inf.  103. 

*  1  Bl.  Com.  4G3,  Harg.  n.,  and  acts  there  enumerated. 

5  Supra,  p.  393. 

[427] 


*  398  GUARDIAN   AND   WARD. 

mentioned  in  the  books  are  exceedingly  rare.^     Blackstone 
again,  speaking  of  guardians  for  nurture,  adds  that  in  default 
of  father  or  mother,  the  ordinary  usually  assigns  some  dis- 
creet person  to  take  care  of  the  infant's  personal  estate,  and 
to  provide  for  his  maintenance  and  education.^     The  practice 
in  the  spiritual  court  was  to  permit  the  minor,  when  of  suita- 
ble  age,  to  nominate  his  guardian  subject  to  its  approval. 
This  was  but  a  limited  privilege  after  all,  though  it  seems  to 
have  been  granted  to  all  children  between  seven  and  twenty- 
one.^     It  is  manifestly  different  from  the  right  of  election 
allowed  the  socage  ward.     The  authority  of  spiritual  courts 
to  appoint  a  guardian  of  the  person  and  estate  was  emphati- 
cally denied  by  Lord  Hardwicke,  and  chancery  afterwards 
took  this  guardianship  completely  into  its  own  keeping. 
*  399    The  infant,  above  the  age  of  fourteen,  is  *  still  per- 
mitted to  nominate  his  guardian  before  the  Court  of 
Chancery ;  but  his  nomination  does  not  supersede  the  author- 
ity of  the  court,  whether  he  be  a  socage  ward  or  not.*     Guar- 
dianship by  election  of  the  infant  has  thus  become  a  misnomer, 
for  he  does  not  absolutely  elect. 

Guardianship  in  the  United  States  differs  considerably  from 
guardianship  in  England.  Here  the  whole  subject  is  con- 
trolled in  a  great  measure  by  local  statutes.  There  are  fewer 
kinds  of  guardians  found  in  American  practice,  though  some 
of  the  more  important  classes  are  recognized  to  a  Kmited 
extent.  Thus  guardianship  by  nature  and  nurture,  or  the 
parental  right  of  custody,  prevails  in  most  of  the  States.  But 
as  all  children,  male  and  female,  inherit  alike  with  us,  guar- 
dianship by  nurture  is  not  even  so  clearl^^  distinguished  from 
guardianship  by  nature,  as  in  the  English  practice.^ 

Guardianship  in  socage  was  never  common  in  the  United 
States.     But  traces  of  its  existence  are  to  be  found.     Thus 


■  I  Co.  Litt.  88  b,  Harg.  n.  16 ;  Macpliers.  Inf.  77. 

■^  1  Bl.  Com.  4G1.  3  Fitzgib.  164  ;  Co.  Litt.  88  b,  Harg.  n.  16. 

*  Co.  Litt.  88  b,  Harg.  n.  16  ;  Hughes  v.  Science,  3  Atk.  631 ;  Macphers.  Inf. 
74,  78. 

5  2  Kent  Com.  221 ;  Reeve  Dora.  Rel.  315;  Macready  v.  Wilcox,  33  Conn. 
32L 

[428] 


GUARDIANS  IN   GENERAL.  *  399 

in  1809,  a  guardian  in  socage,  in  New  York,  was  permitted  to 
bring  trespass  and  ejectment.^  This  species  of  guardianship 
is  now  ahnost  wholly  superseded.  In  fact  it  could  seldom 
have  arisen,  since  half-blood  and  whole-blood  relatives  in  this 
country  inherit  alike ;  so  that  a  blood  relation  who  cannot 
possibly  inherit  could  rarely  be  found  to  assume  the  duties  of 
the  office.^  A  father  who  holds  lands  for  life,  with  the  re- 
mainder vested  in  his  children,  cannot  be  their  guardian  in 
socage.^  And  the  lease  of  his  ward's  lands  by  any  such 
guardian  may  be  defeated  by  the  appointment  of  another 
guardian,  pursuant  to  the  statute,  who  elects  to  avoid  it.* 

We  have  testamentary  guardians,  with  essentially  the  same 
powers  and  duties  as  in  England.  The  statute  of  12  Charles 
II.  has  been  enacted  in  most  of  the  United  States,  with  the 
language  somewhat  changed.  No  religious  disabilities  are 
imposed  in  our  law.  But  while  some  States  follow  the 
words  of  the  ancient  statute  as  to  minor  fathers,  the  right  is 
elsewhere  restricted  to  such  as  are  competent  to  make 
a  will  ;  and  this  is  *  a  preferable  expression.  For  pre-  *  400 
cise  modifications  the  student  should  consult  the  laws 
of  his  own  State.  Some  statutes  use  the  words  "  deed  or 
will."  The  Ohio  statute  drops  the  word  "  deed  "  altogether. 
And  not  uncommonly  is  it  found  in  America  that  testamen- 
tary guardians  can  only  be  appointed  by  a  will  executed  with 
the  usual  solemnities.^ 

The  right  of  testamentary  appointment  is  still  confined  to 
the  father  in  most  States.  But  an  Illinois  statute  permits  the 
mother,  if  not  remarried,  to  appoint  such  a  guardian,  pro- 
vided no  appointment  was  previously  made  by  the  father.^ 
In  New  York,  the  consent  of  the  mother  is  required  to  a  tes- 
tamentary appointment  by  the  father.^     So,  too,  the  English 

1  Byrne  v.  Van  Iloesen,  5  Johns.  66.  See  also  Jackson  v.  De  Walts,  7  ib. 
157. 

2  2  Kent  Com.  222,  223  ;  Reeve  Dom.  Rel.  315,  316. 

3  Graham  v.  Houghtalin,  1  Vroom,  552. 
*  Emerson  i'.  Spicer,  46  N.  Y.  594. 

5  See  2  Kent  Com.  225,  226  ;  Hoyt  v.  Hellen,  2  Edw.  Ch.  202 ;  Matter  of 
Pierce,  12  How.  Pr.  532;  Vanartsdalen  v.  Vanartsdalen,  14  Penn.  St.  384  ;  Ward- 
well  V.  Wardwell,  9  Allen,  518. 

6  N.  Y.  Stat.  1862,  c.  172.  And  see  Sackett's  Estate,  1  Tuck.  (N.  Y.  Surr.) 
84. 

[429] 


*  400  GUARDIAN  AND  WARD. 

principle  prevails,  that  the  testator  can  appoint  a  guardian 
over  his  own  children  only  ;  the  right  extending,  however,  to 
posthumous  offspring.  He  cannot  appoint  guardians  for  other 
children,  though  he  give  them  his  property.^  But  where  a 
statute  provides  that  a  child  may  be  adopted  by  one  with  the 
same  rights  as  if  the  offspring  were  his  own,  it  seems  just  that 
the  father,  thus  constituted,  should  have  the  right  of  appoint- 
ing a  testamentary  guardian  for  his  adopted  child,  just  the 
same  as  for  other  children. 

Chancery  guardianship  may  be  considered  as  adopted  to 
some  extent  in  this  country.  The  supreme  courts  in  many 
States  have  now  full  chancery  powers,  as  in  England,  over 
the  persons  and  estate  of  infants ;  they  may  order  invest- 
ments, decree  care  and  custody  of  the  person,  take  children 
under  their  protection  as  wards  of  the  court  in  certain  cases, 
regulate  the  conduct  of  guardians,  and  otherwise  exercise  the 
important  functions  which  vest  in  the  English  equity  courts. 
But  English  chancery  jurisprudence  is  one  thing,  and  that  of 
the  United  States  another.  While  in  one  country  the  ap- 
pointment, removal,  and  general  supervision  of  guardians  im- 
mediately belong  to  the  equity  courts,  in  the  other  a  special 
tribunal  is  usually  created  for  such  matters.  It  is  this  special 
tribunal  —  somewhat  resembling  the  English  ecclesias- 
*  401  tical  court  —  which  alone  issues  letters  *of  guardian- 
ship, revokes  them,  and  superintends  trust  accounts  in. 
the  first  instance.  The  guardians  thus  chosen  have,  in  gen- 
eral, the  rights  and  duties  of  chancery  guardians  of  the  person 
and  estate. 

The  propriety  of  distinguishing  between  chancery  guardians 
and  those  appointed  by  the  special  courts  of  this  country  — 
whether  known  as  the  probate,  orphans',  ordinary's,  or  surro- 
gate's courts  —  is  obvious  when  the  origin  of  our  probate 
jurisdiction  is  considered.  At  the  time  America  was  colonized, 
chancery  guardianship  was  unknown  in  England.  '  The  eccle- 
siastical or  spiritual  courts,  independent  of  all  temporal  author- 
ity,  controlled  the   estates  of  orphans   and   their   deceased 

1  Brigham  v.  Wheeler,  8  Met.  127  ;  2  Kent  Com.  225. 

[430] 


GUARDIANS  IN  GENERAL.  *  -401 

parents.  The  necessity  of  some  tribunal  with  probate  juris- 
diction was  soon  apparent  to  our  ancestors  ;  but,  rejecting  the 
idea  of  a  church  establishment,  they  distributed  probate  and 
equity  powers  among  the  common-law  courts.  Their  judicial 
system  was  at  first  simple  :  that  of  local  county  courts  with  a 
supreme  tribunal  of  appeal.  With  the  growth  of  population 
came  a  division  of  these  powers  in  the  inferior  courts.  New 
county  tribunals  were  erected  for  business  appertaining  to 
estates  of  the  dead,  testamentary  trusts,  and  the  care  of 
orphans :  a  blending,  as  it  were,  of  ecclesiastical  and  equity 
functions.  The  old  county  courts  were  left  to  their  common- 
law  jurisdiction,  while  the  supreme  tribunal  retained  control 
over  them  all,  exercising  appellate  powers  in  common  law, 
equity,  and  ecclesiastical  suits.  Such,  in  a  word,  is  the  gen- 
eral origin  of  guardianship  by  judicial  appointment  in  this 
country.^  While  the  English  chancery  court  was  slowly 
extending  its  rights  over  the  persons  and  estates  of  infants, 
another  system  was  in  process  of  growth  on  this  side  of  the 
water,  borrowing  from  English  law  as  occasion  offered,  and 
adapting  itself  to  the  increasing  wants  of  our  own  community. 
This  system,  fostered  doubtless  by  a  strong  jirejudice  against 
chancery  practice,  with  its  expensiveness  and  prolixity 
of  pleadings,  a  prejudice  widely  *  prevalent  during  the  *  -402 
last  century,  especially  in  New  England,  spread  gradu- 
ally into  the  new  vStates  and  territories,  the  creature  of  stat- 
ute law  M^herever  it  went. 

Much  confusion  has  arisen  in  our  courts  wherever  this  dis- 
tinction has  not  been  kept  in  view.  The  law  of  guardianship 
is  often  discussed  as  though  we  inherited  the  English  chan- 
cery system,  when  in  truth  our  usual  practice  is  without  its 
counterpart  abroad.  The  only  American  text-writers  of 
authority  on  this  subject.  Reeve  and  Kent,  have  contributed 
to  this  perplexity.  The  former  was  not  precise  in  his  classi- 
fication.2  The  latter  unwisely  confused  American  and  Eng- 
lish ap2)ointments,  applying  the  term  chancery  guardians  to 
botli."^     But  the  courts  have  sometimes  perceived  the  neces- 

'  See  Smith  (Mass.)  Prob.  Pract.  1-5. 

2  Reeve  Dom.  Rel.  311.  3  2  Kent  Com.  226. 

[431] 


*402  GUARDIAN  AND   WARD. 

sity  of  a  separate  name  for  guardians  appointed  by  courts 
of  probate  jurisdiction.  Accordingly,  they  have  been  called 
guardians  of  the  person  and  estate  ;  ^  but  this  name  is  quite  as 
appropriate  to  others.  So,  too,  they  are  designated  as  statute 
guardians  ;  but  there  are  statute  modifications  applied  to  all 
kinds  of  guardians,  and  besides,  this  name  was  long  ago 
bestowed  by  English  writers  upon  testamentary  guardians? 
We  shall  apply  then  in  these  pages,  for  want  of  something 
better,  the  distinguishing  term  prolate  guardians  ;  this  being 
sufficiently  precise  and  suggestive  ;  though  it  is  admitted  that 
the  appointing  power  is  not  lodged  in  tribunals  styled  probate 
courts  in  every  State,  nor  necessarily  separated  from  courts 
exercising  common-law  functions. 

By  the  civil  law,  minority  was  divided  into  two  distinct 
periods  :  the  first  lasting  until  the  age  of  puberty,  fourteen  in 
males,  and  twelve  in  females  ;  the  second  continuing  from 
that  time  until  majority.  During  the  first  period,  the  guar- 
dian was  called  tutor,  and  the  children  pupils.  During  the 
second  period,  the  guardian  was  called  curator,  and  the 
*  403  children  *  minors ;  the  curator  being  appointed  with 
special  reference  to  the  management  of  property.^ 
The  same  general  divisions  are  to  be  found  in  the  law  of  con- 
tinental Europe  at  the  present  day,  though  modified  somewhat 
b}^  custom  ;  also  in  Scotland ;  '^  also  in  Louisiana,  and  other 
parts  of  this  country,  which  were  formerly  under  French  and 
Spanish  dominion.  But  the  term  curator  is  in  some  codes 
applied  to  the  guardian  of  the  estate  of  the  ward  as  distin- 
guished from  the  guardian  of  the  person.^  So  the  civil  law 
recognized  three  kinds  of  guardianship :  tutela  testamentaria, 
conferred  by  testament ;  legitima,  by  the  law  itself  ;  dativa, 
by  the  authority  of  the  judge.^  These  divisions  have  their 
corresponding  analogies  in  English  and  American  law  ;  since 
we  may  place  testamentary  guardians  in  the  first  class,  socage 

1  See  Arthur's  Appeal,  1  Grant  (Penn.),  55.  -  See  siipra,  p.  393. 

3  Story  Confl.  Laws,  §  493 ;  3  Burge  Col.  &  For.  Laws,  930,  1001-1014. 

*  Fraser  Guardian  &  AYard,  145. 

5  2  Kent  Com.  224  ;  Duncan  v.  Crook,  49  Mis.  116. 

«  Co.  Cop.  §  23 ;  Macphers.  Inf.  573 ;  8  Burge  Col.  &  For.  Laws,  931. 

[432] 


GUARDIANS  IN  GENERAL.  *  403 

and  natural  guardians  in  the  second,  and  chancery  and  pro- 
bate guardians  in  the  third. 

The  different  kinds  of  guardianship  for  minors  having  been 
considered,  we  proceed  to   speak   briefly   of  guardians   for 
idiots,  lunatics,  and  spendthrifts,  though  this  subject  comes 
hardly  within  our  scope.     Under  the  king's  sign-manual,  the 
Lord    Chancellor   was   invested    with   jurisdiction    over   the 
persons  and  estates  of  insane  persons.     For  this  reason  did 
chancery  claim  authority  ;  not  by  virtue  of  the  king's  pre- 
rogative as  parens  patrice ;  for  idiots  and  lunatics,  it  is  said, 
were  not  under  the  protection  of  the  sovereign  until  the  time 
of  Edward  II.^     Lunatic  asylums  are  provided  by  law,  and 
regulated  from  time  to  time.     For  legally  determining   the 
question  of  insanity  in  any  case,  chanceiy  grants  a  commis- 
sion in  the  nature  of  a  writ,  directed  to  masters  in  lunacy ; 
and  if  the  subject  be  found  noyi  compos^  the  court  commits  his 
person,  together  with  a  suitable  allowance  for  his   mainte- 
nance, to  some  person  who  is  then  called  his  committee. ^ 
Blackstone  states  that   the  rule  in  his  day  was  to  refuse 
this  guardianship  to  the  lunatic's  next  of  kin,  "  because 
it  is  his  interest  that  the  party  should  die  ;  "  *  but  this    *  404 
rule  has  long  been  disregarded  in  practice.^     The  com- 
mittee manages  his  ward's  estate,  much  the  same  as  other 
guardians,  being  held  to  a  strict  account  to  the  court  of  chan- 
cery, and  to  the  ward,  if  he  recovers,  or  otherwise  to  his  per- 
sonal representatives  after  his  death.     There  are  receivers 
appointed,  with  a  salary,  in  case  others  refuse  to  act ;  but  such 
officer  is  considered  as  a  committee,  and  gives  proper  security.* 
Guardians  of  insane  persons  are  appointed  in  this  country ; 
but  in  general  by  the  courts  exercising  jurisdiction  in  case  of 
minors,  which  derive  also  their  authority  from  local  statutes.^ 
The  civil  law  likewise  assigned  tutors  and  curators  to  such 
persons.^ 

•  2  Story  Eq.  Juris.  §§  1.3.35,  1336  ;  1  Bl.  Com.  303  ;  3  P.  Wms.  108. 

2  1  Bl.  Com.  306.     See  Lunacy  Regulation  Act  1853,  16  &  17  Vict.  c.  70. 

'  Ex  parte  Cockayne,  7  Ves.  591. 

«  1  Bl.  Com.  306.     See  Ex  parte  Warren,  10  Ves.  622. 

*  See  U.  S.  Dig.  "Idiots  and  Lunatics;  "  Shroyer  v.  Richmond,  16  Ohio  St. 
455.  «  1  Bl.  Cora.  306. 

28  [  433  ] 


*  404  GUARDIAN  AND   WARD. 

Guardianship  for  spencltlirifts  was  something  recognized  by 
the  civil  hiw.  Where  a  man,  by  notorious  prodigality,  was  in 
danger  of  wasting  his  estate,  he  was  looked  upon  as  7ion 
compos^  and  committed  to  the  care  of  curators  or  tutors  by 
the  prsetor.^  And  by  the  laws  of  Solon,  such  persons  were 
branded  with  perpetual  infamy .^  Such  guardianship  is,  how- 
ever, unknown  in  England,  and  Blackstone  considered  it 
unsuitable  to  the  genius  of  a  free  nation.^  It  has  never- 
theless been  introduced  into  several  of  the  United  States.^ 
Being  the  creature  of  statute  law,  the  rights  and  powers  of 
such  a  guardian,  and  the  method  of  appointment,  are  strictly 
construed. 

The  recent  statutes  relating  to  married  women  in  this  coun- 
try have  rendered  some  special  provisions  necessary  for  their 
benefit.  While  their  husbands  had  the  full  enjoyment  of 
their  propert}'",  no  guardian  was  necessary,  and  the  main  object 
of  these  statutes  seems  to  be  to  provide  a  suitable  trustee  of 
the  estate,  in  case  a  minor  or  insane  wife  is  abandoned 

*  405    by  her  husband,   *  or  he  is  likewise  mentally  unfitted 

for  the  trust.     Such  statutes  are  to  be  strictly  con- 
strued as  in  derogation  of  the  common  law.^ 

Besides  guardians  with  general  powers,  there  are  guardians 
created  by  law  for  special  purposes.  Such  are  guardians  under 
the  English  marriage  act,  appointed  for  giving  formal  consent 
to  the  marriage  of  a  minor,  and  guardians  to  release  dower 
and  homestead  rights  of  insane  married  women.  All  such 
guardians  derive  their  sole  authority  from  statutes,  and  hav- 
ing performed  the  duty  prescribed,  they  have  no  further  con- 
cern with  the  ward.  Nor  do  they  act  except  in  default  of  a 
general  guardian.  There  are  also  public  officers  appointed 
for  charitable  purposes  on  behalf  of  the  State,  sometimes 
known  as  guardians ;  such  as  guardians  of  the  poor ;  but, 
except  for  this  appellation,  they  have  no  connection  whatever 
with  our  subject.^     Special  guardians,  too,  are  found  under 

1  Ff.  27,  10,  6,  16.  2  Potter  Antiq.  b.  1,  c.  26. 

3  1  Bl.Com.  306.  *  See  Mass.  Gen.  Sts.  c.  109,  §§  8,  9. 

6  Smith  Prob.  Pract.  87. 

6  See  Macphers.  Inf.  164 ;  Smith  Prob.  Pract.  87. 

[434] 


GUARDIANS  IN  GENERAL.  *  405 

some  statutes,  their  rights  and  duties  being  merely  temporary, 
pending  some  controversy  over  the  appointment  of  a  general 
guardian  ;  just  as  special  administrators  are  sometimes  ap- 
pointed in  a  case  of  emergency,  and  where  the  appointment  of 
the  general  administrator  is  necessarily  delayed.^ 

Finally,  there  is  the  guardian  ad  litem^  who  is  simply  a 
guardian  for  a  special  purpose  ;  being  one  chosen  to  repre- 
sent the  ward  in  legal  proceedings  to  which  he  is  a  party 
defendant.  Where  the  ward  is  j)laintiff  he  appears  by  next 
friend.  The  powers  and  duties  of  guardians  ad  litern  are 
similar  in  England  and  the  United  States.^ 

1  Campau  v.  Shaw,  15  Mich.  226  ;  Swartwout  v.  Oaks,  52  Barb.  622. 

2  Macphers.  Inf.  358  ;  2  Kent  Com.  229.     See  Infants,  post. 


[435] 


406  GUARDIAN  AND  "WARD. 


*406  *  CHAPTER   II. 

APPOINTMENT   OF   GUARDIANS. 

Guardians  derive  their  authority  either  from  the  law  or 
a  special  appointment.  And  all  guardians  of  infants  specially 
appointed  must  be  appointed  by  the  infant's  parent ;  or  by 
the  infant  himself;  or  by  a  court  of  competent  jurisdiction. 

Guardians  by  nature  and  nurture  act  under  authority  of  the 
law  ;  which  designates,  first,  the  father ;  and,  after  his  death, 
the  mother.  These  are  the  only  natural  guardians  possible.^ 
It  has  been  said  that  the  infant's  next  of  kin  succeed  to  the 
natural  guardianship  when  both  parents  are  dead.^  This 
cannot  be  correct  according  to  the  sense  of  the  term  as  used 
at  this  day.  The  mother  is  considered  the  natural  guardian 
of  a  bastard,  in  this  country,  as  against  its  putative  father ;  ^ 
though  the  common  law  regarded  such  children  as  without  a 
natural  guardian.^  On  principle,  it  would  seem  that  the 
natural  guardianship  of  a  child  is  shifted  to  the  mother  when 
custody  is  awarded  her  because  of  her  husband's  personal 
unfitness.  And  the  modern  tendency  is  to  regard  both  hus- 
band and  wife  as  guardians,  by  nature,  of  their  own  children.^ 

Socage  guardians  also  derived  their  authority  from  the  law, 
and  not  from  a  special  appointment.^ 

Testamentary  guardianship  is  the  only  recognized 

*  407    instance  of  *  authority  derived  from  parental  appoint- 

1  Co.  Litt.  88  6 ;  1  Bl.  Com.  461 ;  2  Kent  Com.  220 ;  Macphers.  Inf.  52 ; 
Jarrett  v.  State,  5  Gill  &  Johns.  27 ;  Eldridge  v.  Lippincott,  Coxe,  397 ;  Fields 
V.  Law,  2  Root,  320. 

-  See  Reeve  Dom.  Rel.  315. 

•  3  Wright  V.  Wright,  2  Mass.  109 ;  Hudson  i-.  Hills,  8  N.  H.  417 ;  People  v. 
Kling,  6  Barb.  366 ;  Dalton  v.  State,  6  Blackf.  357. 

*  Macphers.  Inf.  67  ;  supra,  pp.  382,  384. 

s  See  supra,  p.  333,  338,  391,  399 ;  People  v.  Boice,  39  Barb.  307. 

6  2  Kent  Com.  223 ;  see  supra,  pp.  392,  399. 

[436] 


APPOINTMENT   OF   GUARDIANS.  *  -107 

ment.  Guardians  thus  appointed  require  no  further  quaH- 
fication ;  not  even  the  probate  of  the  will  which  appoints 
them.i  But  testamentary  guardianship  exists  in  this  country 
chiefly  by  force  of  local  statutes.  And  we  find  many  modi- 
fications of  the  English  rule  ;  none  more  important  than  those 
of  several  vStates  which  render  a  probate  of  the  will  neces- 
sary before  a  testamentary  guardian  can  act ;  while  it  is  not 
unfrequently  found  that  the  appointment  remains  subject  to 
the  approval  of  the  court,  and  requires  the  presentation  of 
due  security  by  the  person  appointed. 

The  parol  appointment  of  a  testamentary  guardian  is  in- 
sufificient.2  But  the  instrument  which  designates  him  need 
not  be  executed  with  the  same  formality  as  a  will ;  for  the 
father,  as  the  old  statute  intimates,  may  appoint  by  testamen- 
tary deed.  It  has  been  held  that  the  appointment  of  guardians 
by  a  will  not  duly  attested  was  made  good  by  a  codicil  duly 
attested,  written  on  the  same  paper,  making  certain  altera- 
tions in  the  will,  and  confirming  it  in  other  respects.^ 

It  is  sometimes  difficult  to  determine  what  language  will 
constitute  testamentary  guardianship.  The  statute  uses  the 
words  "  custody  and  tuition  "  in  reference  to  the  children  ; 
and  such  assignment  of  the  children  as  confers,  expressly  or 
by  implication,  a  power  thus  extensive,  ought  to  suffice. 
Thus,  where  a  testator  gives  the  "  care  and  custody  "  of  his 
children,  further  directing  that  the  person  so  intrusted  shall 
be  guided  by  the  advice  of  his  executors,  as  to  the  children's 
education,  this  is  held  to  be  a  good  appointment.^  So  it  is 
held  that  testamentary  guardianship  was  constituted,  where  a 
testator  directed  the  trustees  of  his  will  to  procure  a  suitable 
house  for  the  residence  of  his  children,  who  were  in- 
fants, and  to  engage  a  proper  *  person  for  the  purpose   *  408 

1  Brigham  v.  Wheeler,  8  Met.  127  ;  Hoyt's  Case,  2  Edw.  Ch.  113  ;  In  re  Hart, 
2  Con.  &L.  375;  Lady  Chester's  Case,  Vent.  207.  See  7  A^cs.  365;  Gilliat  v. 
Gilliat,  3  PhiUim.  222.  The  validity  of  the  testamentary  appointment  beinf^  in 
dispute,  a  court  of  common  law  over  a  question  of  custody  has  directed  an  issue 
in  order  to  establish  the  same.     In  re  Andrews,  L.  R.  8  Q.  B.  153. 

'^  Macphers.  Inf.  84.     See  Johnstone  v.  Beattie,  10  CI.  &  Fin.  42. 

'  De  Bathe  i^.  Lord  Fingal,  16  Ves.  167.  But  see  Marshall,  C.  J.,  in  Gainei 
V.  Spann,  2  Brock.  81  ;  Ward  well  v.  Ward  well,  9  Allen,  518. 

*  See  Corrigan  v.  Kiernan,  1  Bradf .  20S. 

[437] 


*  408  GUARDIAN   AND   WARD. 

of  taking  the  management  and  care  of  the  house  and  of  his 
children  during  their  minority  ;  and  requested  his  late  wife's 
sister,  if  she  should  be  alive  at  his  decease,  to  take  such 
management  and  care  on  herself.^  And  in  general  testa- 
mentary guardians  need  not  be  exjDressly  designated  as  such  ; 
albeit  in  order  to  constitute  them  by  implication,  the  powers 
essential  to  the  office  must  be  conferred.^ 

The  devise  of  certain  property  in  trust  for  infants  is  not  a 
devise  of  guardianship.  Thus,  it  was  said  by  Lord  Vaughan 
that,  where  a  testator  devised  land  to  a  trustee,  to  be  held  in 
trust  for  his  heir,  and  for  his  maintenance  and  education  until 
he  should  be  of  age,  this  was  no  devise  of  the  custody  within 
the  statute,  for  he  might  have  done  this  before  the  statute.^ 
The  same  may  be  said  generally  of  legacies  and  bequests  in 
trust.* 

Testamentary  guardians,  to  use  the  statute  expression,  may 
be  appointed  "  either  in  possession  or  remainder ;  "  that  is, 
successors  in  the  guardianship  may  be  designated.  So  they 
may  be  authorized  to  act  during  the  full  term  of  the  infant's 
minority  or  for  a  less  period.  So  the  will  may  give  authority 
to  the  surviving  guardian  to  nominate  a  person  in  the  place 
of  his  co-guardian  who  has  died ;  although  it  appears  to  be 
a  general  rule  that  one  testamentary  guardian  cannot  appoint 
another,  since  his  office  is  personal,  and  not  assignable.^  In 
other  words,  the  testator  is  allowed  a  liberal  discretion  in  his 
selection  and  in  limiting  authority.  The  paper  which  creates 
a  person  testamentary  guardian,  becomes  thus  the  test  of  his 
official  powers  and  responsibility.  Letters  of  guardianship 
from  the  chancery  or  probate  court  give  his  appointment  no 
additional  force,  unless  required  by  statute.  In  fact  such 
letters,  however  regarded  in  his  dealings  with  strangers,  are 
as  a  rule  issued  without  jurisdiction.^ 

1  Miller  v.  Harris,  14  Sim.  540.  See  Mendes  v.  Mendes,  1  Ves.  89;  s.  c.  3 
Atk.  619. 

2  Gaines  v.  Spann,  2  Brock.  81 ;  Peyton  v.  Smith,  2  Dev.  &  Batt.  Eq.  325 ; 
Johnstone  v.  Beattie,  10  CI.  &  Fin.  42;  Balch  v.  Smith,  12  N.  H.  437. 

3  Bedell  v.  Constable,  Vaugh.  177. 

*  Kevan  r.  Waller,  11  Leigh,  414  ;  Dunham  v.  Hatcher,  31  Ala.  483. 

5  Goods  of  Parnell,  L.  R.  2  P.  &  D.  379;  Macphers.  Inf.  82;  Vaugh.  177. 

«  Robinson  v.  GoUinger,  9  Watts,  169 ;  Morris  v.  Harris,  15  Cal.  226 ;  Holmes 

[438] 


APPOINTMENT   OF  GUARDIANS.  *  409 

*  In  a  late  New  York  case,  it  was  held,  on  appeal  *  409 
from  the  surrogate,  that  no  probate  guardian  could 
be  appointed  after  the  father's  decease,  where  the  father, 
being  a  man  of  indigent  circumstances,  had  surrendered  his 
children  to  a  charitable  institution  by  an  instrument  in  writ- 
ing, executed  during  his  lifetime,  and  not  long  before  his 
death,  in  presence  of  two  witnesses,  which  purported  to 
"  commit  and  surrender "  the  children  to  the  said  insti- 
tution pursuant  to  its  charter.  There  were  no  testamentary 
expressions  used,  nor  did  the  instrument  appear  to  have  been 
executed  in  contemplation  of  death.  The  decision  of  the 
court  appears  to  rest  on  statutory  interpretation. ^  In  general, 
a  firm  cannot  be  made  guardian  of  an  infant ;  nor  probably 
can  a  corpora tion.^ 

The  testator's  power  of  appointment  extends  to  all  his 
lawful  children  surviving  at  his  decease,  being  still  minors 
and  unmarried.  Posthumous  children  are,  likewise,  included. 
And  the  testator's  appointment  of  his  wife  as  testamentary 
guardian  is  not  revoked  by  the  birth  of  such  issue,  subse- 
quent to  the  execution  of  the  will  or  testamentary  deed 
appointing  her  ;  the  analogy  of  distribution  of  his  property 
failing  to  affect  this  case.^ 

Guardianship  by  sole  appointment  of  the  infant  cannot  now 
be  said  to  exist.  But  at  the  common  law  there  was  one 
instance  where  it  arose  ;  namely,  when  the  heir  above  the 
age  of  fourteen  chose  to  supersede  his  guardian  in  socage, 
by  one  of  his  own  choice,  under  a  deed  of  appointment.^ 
Infants  have  still  the  privilege  of  nominating,  though  not 
appointing,  a  guardian  in  court,  after  arriving  at  this  age  ; 

V.  Field,  12  111.  424;  Copp  t'.  Copp,  20  N.  H.  284.  See  Macpliers.  Inf.  84,  86; 
Stone  V.  Dorrett,  18  Tex.  700.  If  the  testator's  will  prescribes  that  the  wife 
shall  be  testamentary  guardian  of  the  children,  "  as  long  as  she  shall  remain  his 
widow,"  her  authority  ceases  on  her  remarriage,  and  a  new  appointment  be- 
comes necessary.  Corrigan  v.  Kiernan,  1  Bradf.  Sur.  208;  IL^lmes  v.  Field,  12 
111.  424. 

1  People  V.  Kearney,  31  Barb.  430. 

-  Sec  Macphers.  Inf.  109  ;  De  Mazar  t>.  Pybus,  4  Yes.  G44. 

»  llollingsworth's  Appeal,  -51  Penn.  St.  618;  2  Bro.  C.  C.  538;  Macphers. 
Inf.  87. 

*  Supra,  pp.  393,  398;  Co.  Litt.  89  a. 

[439] 


*  409  GUARDIAN  AND   WARD. 

and,  if  judicially  sanctioned,  their  choice  is  good.     In  the 

appointment  of  chancery  guardians,  the  custom  is  for  the 

court  to  approve   such  nomination  without  the  usual 

*  410    reference  to  a  master.^     But  this  is  not  an  *  invariable 

rule .2  Testamentary  guardians  cannot  be  superseded 
in  this  way,  nor  chancery  guardians.^  Statutes  giving  the 
right  of  selecting  probate  guardians  to  infants  above  fourteen 
have  been  enacted  throughout  the  United  States ;  but  the 
extent  of  this  privilege  is  not  uniformly  prescribed.^  Yet 
the  ward  cannot  set  aside  a  testamentary  or  chancery  guardian 
in  this  country ;  nor,  on  principle,  should  he  be  allowed  to 
supersede  a  probate  guardian  properly  appointed,  unless 
authorized  to  do  so  by  a  positive  statute.^  Having  once 
exercised  his  right  of  choice,  he  is  bound  by  the  appoint- 
ment, and  cannot  nominate  again,  as  his  fancy  pleases.^  In 
any  event,  the  court  must  sanction  the  infant's  selection,  and 
issue  letters  before  the  guardian  can  act ;  so  that  this  is  guardi- 
anship by  appointment  rather  of  the  court  than  of  the  infant. 

Chancery  and  probate  guardians,  subject  to  the  above  quali- 
fication, are  created  in  strictness  by  the  special  appointment 
of  a  court  exercising  competent  jurisdiction.  And  in  discuss- 
ing this  subject  of  judicial  appointment  we  shall  consider, 
first,  the  tribunal  which  appoints ;  second,  the  persons  prop- 
erly appointed  ;  third,  the  method  of  appointment ;  and/our^A, 
the  effect  of  the  appointment. 

First.  As  to  the  first  point,  it  may  be  premised  that  in 
England  all  guardians  are  appointed  by  the  Court  of  Chancery 
in  the  exercise  of  inferior  or  appellate  powers.  Chancery 
guardians  have  been  appointed  in  this  country,  but  not  fre- 
quently ;    and  county  courts  of  probate  jurisdiction  at  the 

1  Ex  parte  Edwards,  3  Atk.  519 ;  Macphers.  Inf.  78,  109. 

2  Ex  parte  Watkins,  2  Ves.  470 ;  Curtis  i;.  Rippon,  4  Madd.  462 ;  Coham  v. 
Coham,  13  Sim.  639. 

3  Palmer,  22 ;  Andrew,  313 ;  Matter  of  Dyer,  5  Paige  Ch.  534 ;  Matter  of 
Nicoll,  1  Johns.  Ch.  25. 

*  See  Ham  v.  Ham,  15  Gratt.  74;  Dibble  v.  Dibble,  8  Ind.  307;  Pitts  v. 
Cherry,  14  Geo.  594  ;  Arthurs'  Appeal,  1  Grant,  55;  Sessions  v.  Kell,  30  Miss. 
458 ;  Montgomery  v.  Smith,  3  Dana,  599 ;  Palmer  v.  Oakley,  2  Doug.  433. 

5  Dyer's  Case,  5  Paige  Ch.  534. 

«  Lee's  Appeal,  27  Penn.  St.  229.     See  also  E.  B.  v.  E.  C  B.,  28  Barb.  299. 

[440] 


APPOINTMENT   OF  GUARDIANS.  *  410 

present  day  generally  act  in  the  first  instance,  issuing  letters 
of  guardianship  as  well  as  of  administration,  under  their 
official  seal.  Thus,  in  New  England  and  most  of  the 
Western  States,  probate  guardians  are  appointed  *  by  *  411 
the  judge  of  probate  ;  in  New  York,  by  the  surrogate  ; 
in  New  Jersey,  by  the  orphans'  court  or  the  ordinary  ;  in 
Pennsylvania  and  Maryland,  by  the  orphans'  court ;  in  Ohio, 
by  the  Court  of  Common  Pleas  with  chancery  powers;  in 
California,  by  the  district  courts  possessing  a  similar  jurisdic- 
tion. In  Virginia,  North  and  South  Carolina,  the  chancery 
and  county  courts  have  exercised  a  sort  of  concurrent  juris- 
diction ;  in  others  of  the  Southern  States  there  are  orphans' 
courts  ;  in  Louisiana,  the  civil  law  has  prevailed.^ 

Two  important  elements  enter  into  this  jurisdiction  over  the 
ward  :  possession  of  property  and  actual  residence  within  the 
judicial  limits.  Property  in  the  infant  has  usually  been 
deemed  essential  in  chancery  practice.^  But  in  a  case  which 
came  before  Lord  Chancellor  Cottenham,  in  1847,  it  was  held 
that  the  court  should  interfere  on  behalf  of  infants  without 
property,  so  as  to  award  custody  of  the  person.  "  I  have  no 
doubt  about  the  jurisdiction,"  was  his  emphatic  language.^ 
What  may  be  called  guardians  of  the  person  and  estate  in 
chancery  are  still  appointed,  however,  on  the  allegation  of 
property.  In  the  United  States,  letters  issue  to  probate  guar- 
dians, whenever  there  is  occasion  for  their  appointment,  the 
statute  rarely  prescribing  narrower  limits  to  the  judge's  au- 
thority ;  and,  as  our  practice  is  simple  and  attended  with  little 
expense,  the  same  necessity  for  inquiry  into  the  means  of  the 
infant  does  not  manifestly  arise  as  in  the  case  of  chancery 
guardianship.  But  statute  and  practice  generally  have  refer- 
ence to  cases  of  property.*  Where  the  ward  is  a  non-resident, 
guardianship  is  frequently  recognized  for  the  collection  and 
preservation  of  his  estate  in  the  jurisdiction;  and  in  such 
cases  the  court  where  the  property  is  situated  appoints 
some  friend  of  the  minor  on    his  behalf,  requiring    proper 

1  See  2  Kent  Com.  226,  227,  and  notes ;  Glascott  v.  Warner,  20  Wis.  654  ; 
Herring  v.  Goodson,  43  Miss.  302. 

2  See  Macpliers.  Inf.  103  ;  supra,  p.  397.  »  In  re  Spence,  2  Ph.  247. 
*  People  V.  Kearney,  31  Barb.  430. 

[441] 


*411  GUARDIAN  AND  WARD. 

*  412   security ;  *  the  existence  of  tlie  property  determining 

the  right  of  jurisdiction.^ 

Far  more,  important  is  the  requirement  of  an  actual  resi- 
dence within  the  jurisdiction  ;  especially  in  States  where  the 
authority  of  courts  with  probate  jurisdiction  is  strictly  limited 
to  their  respective  counties.  Letters  of  guardianship  obtained 
in  the  wrong  county  are  null  and  void,  and  may  be  collaterally 
impeached  in  any  court.^  Where  the  courts  of  two  or  more 
counties  have  concurrent  jurisdiction,  as  if  a  non-resident  has 
property  lying  in  different  places,  the  general  principle  is  that 
the  court  where  proceedings  are  first  commenced  retains 
jurisdiction.  And  letters  once  properly  issued  are  not  revoked 
by  the  ward's  removal  to  another  county  within  the  same 
general  jurisdiction.  Where  a  new  appointment  becomes 
necessary,  next  to  the  inquiry  whether  the  party  is  a  minor 
or  otherwise  legally  subject  to  guardianship  at  all,  is  the 
determination  of  his  actual  residence.  But,  as  just  observed, 
property  may  give  jurisdiction  in  some  cases  where  the  ward 
resides  abroad. 

Prima  facie^  the  infant's  residence  or  domicile  is  that  of  his 
parent,  and  such  it  will  remain  during  minority,  in  spite  of 
his  temporary  absence  at  school  or  elsewhere.  Nor  can  he  of 
his  own  motion  acquire  a  new  domicile,  since  he  is  not  a  per- 
son suijuris.^  But  his  domicile  may  be  changed  by  his  father, 
if  he  has  one  ;  otherwise,  according  to  the  best  modern  author- 
ities, by  the  surviving  mother  until  her  remarriage  ;  and  per- 
haps, even  by  'the  guardian  himself,  although  not  a  relative, 
provided  he  act  in  good  faith.*  The  intent  of  the  parent  or 
guardian  in  such  cases  is  always  material ;   but  this 

*  413    intent  is  to  be  determined  by  facts.     *  The  original 

domicile  of  an  infant  is  that  of  his  parents  at  the  time 
of  his  birth.    The  infant's  place  of  residence  at  the  time  when 

1  Clarke  v.  Cordis,  4  Allen,  4G6.     See  Hope  v.  Hope,  27  E.  L.  &  Eq.  249. 

2  Ware  v.  Coleman,  6  J.  J.  Marsh.  198  ;  Sears  v.  Terry,  26  Conn.  273 ;  Dor- 
man  V.  Ogbourne,  16  Ala.  759 ;  Munson  v.  Munson,  9  Tex.  109 ;  Lacy  t'.  Wil- 
liams, 27  Mis.  280 ;  Herring  v.  Goodson,  43  Miss.  392. 

*  Macphers.  Inf.  579 ;  Brown  v.  Lynch,  2  Bradf.  214 ;  Story  Confl.  Laws, 
§46. 

*  Potinger  i'.  Wiglitman,  3  Mer.  07  ;  2  Kent  Com.  227,  430  ;  1  Burge  Col. 
&  For.  Laws,  39 ;  Brown  v.  Lynch,  2  Bradf.  214. 

[  442  ] 


APPOINTMENT  OF  GUARDIANS.  *  413 

a  guardian  is  to  be  appointed  determines  the  jurisdiction  of 
the  court.  Hence,  the  court  which  appointed  the  first  guar- 
dian of  a  ward  may  not  always  appoint  his  successor.' 

The  Court  of  Chancery  exercises  a  large  discretion.  Its 
authority  over  the  persons  and  estates  of  infants,  idiots,  and 
lunatics  cannot  be  questioned  elsewhere.  No  tribunal  short 
of  the  legislature  can  interpose  a  check  upon  its  powers.  But 
it  is  different  with  probate  courts.  Their  jurisdiction  is 
founded  upon  local  statutes,  maintained  in  derogation  of  the 
common  law,  made  subject  to  supervision  of  supreme  tribu- 
nals, and  confined  to  the  exercise  of  special  powers  sparingly 
conferred.  From  the  fact  that  the  English  equity  courts  are 
unfettered  in  their  authority,  chancery  courts  in  this  country 
incline  to  the  same  direction ;  hence,  they  construe  strictly 
the  powers  of  the  probate  courts  while  maintaining  their 
own  ;  a  matter  of  little  difficulty,  since  the  supreme  authority 
is  in  their  hands,  whether  in  matters  of  probate,  equity,  or 
common  law.  With  especial  strictness  are  the  powers  of 
probate  tribunals  scrutinized  in  matters  which  do  not  grow 
out  of  the  settlement  of  estates  of  deceased  persons.^ 

It  may  devolve  on  chancery  to  appoint  guardians  where 
testamentary  guardians  decline  or  are  disqualified  to  act.  So 
where  there  are  two  or  more  testamentary  guardians  and  they 
fail  to  agree.^  And  it  is  the  English  rule  that  testamentary 
guardianship  does  not  go  over  upon  the  guardian's  death,  no 
successor  having  been  indicated  in  the  will ;  but  chancery 
must  supply  the  vacancy."^  The  same  may  be  said  of  the 
courts  in  this  country  with  probate  jurisdiction.^ 

Second.  *  In  selecting  the  proper  person  as  guardian,    *  414 
the  judge  is  allowed  to  exercise  a  liberal  discretion, 
and  his  decision  will  not  b'e  disturbed  on  appeal  except  for 
good  and  sufficient  cause.     Such  is  the  rule  both  in  Enghmd 

1  Brown  v.  Lynch,  2  Bradf.  214.     And  see  supra,  p.  312. 

2  See,  for  instance,  as  to  insane  persons  and  spendthrifts,  Ilolden  v.  Soanlin, 
30  Vt.  177;  Sears  v.  Terry,  2G  Conn.  273;  Strong  v.  Bircliard,  5  Conn.  357; 
Cooper  V.  Summers,  1  Sneed,  453  ;  Hovey  v.  Harmon,  49  Me.  269. 

3  Macphers.  Inf.  113;  ib.  104.  *  Bac.  Abr.  Guardian  and  Ward,  A. 

^  See  People  v.  Kearney,  31  Barb.  430 ;  Judge  of  Probate  v.  Ilimis,  4  N.  H. 
4G4. 

[  443  ] 


*  414  GUARDIAN  AND  WARD. 

and  America.^  But  this  discretion  is  not  an  arbitrary  one ;  it 
must  be  exercised  in  conformity  with  certain  fixed  principles. 
And  if  the  judge  appoint  without  giving  reasonable  notice,  so 
that  parties  interested  have  not  a  fair  opportunity  to  be 
heard  upon  the  petition,  his  appointment  may  be  set  aside 
on  appeal.^ 

Where  the  father  of  an  infant  is  living,  courts  have  ever 
been  unwilling  to  assume  jurisdiction.  Chancery,  according 
to  the  old  rule,  as  we  understand  Blackstone  to  mean,^  could 
not  appoint  a  guardian  except  for  fatherless  children.  But 
the  correctness  of  this  principle  was  afterwards  doubted  ;  and 
when  the  rule  became  settled,  in  Lord  Thurlow's  time,  that 
the  father  could  not  give  a  valid  receipt  for  his  child's  legacy, 
the  necessity  of  appointing  a  guardian  to  collect  and  hold 
personal  property  was  apparent.*  And  since  the  substitution 
of  chancery  and  probate  wards  in  practice  for  socage  wards, 
guardianship  of  the  minor  in  the  father's  lifetime  has  fre- 
quently been  sought  in  the  courts.^ 

But  the  English  chancery  reluctantly  interferes  with  the 
father's  rights  in  such  cases.  Lord  Chancellor  Hart  in  1828 
refused  to  bestow  the  chancery  guardianship  of  a  minor  upon 
a  third  person,  on  the  ground  that  the  father  is  guardian  of 
his  own  children  by  paramount  title  and  common  right.  And 
while  he  admitted  that  the  court  should  in  all  cases  assume 
the  superintendence  of  the  child's  fortunes,  he  added,  that 
during  the  father's  life  no  other  could  be  placed  over  the 
child,  except  under  very  peculiar  circumstances,  and 

*  415    even  then  rather  as  a  *  curator  than  a  guardian.^     And 

the  later  decisions  are  to  the  same  effect ;  as,  for  in- 
stance, FynrCs  Case,  where  Vice-Chancellor  Bruce  refused  to 
make  the  mother  a  chancery  guardian  of  her  children  against 
the  father's  wishes,  though  satisfied  that  the  latter  was  unable 
to  maintain  them,  and  was  such  a  person  as  would  not  have 

1  Kaye's  Case,  L.  R.  1  Ch.  387 ;  Battle  v.  Vick,  4  Dev.  294;  White  v.  Pom- 
eroy,  7  Barb.  640;  Nelson  v.  Green,  22  Ark.  367. 

2  Underhill  v.  Dennis,  9  Paige,  202.  ^  3  Bl.  Com.  427. 

♦  Cooper  V.  Thornton,  3  Bro.  C.  C.  96 ;  Dagley  v.  Tolferry,  1  P.  Wms.  285;  2 
Kent  Com.  220,  and  cases  cited;  Lang  v.  Pettus,  11  Ala.  37. 

5  See  Ex  parte  Bond,  8  L.  J.  252,  Ch. 

6  Barry  v.  Barry,  1  Moll.  210. 

L  444  ] 


APPOINTMENT  OF  GUARDIANS.  *  415 

been  selected  for  the  guardianship  of  another  person's  chil- 
dren.^ 

The  great  difficulty  which  arises  in  the  English  chancery 
practice,  where  guardianship  is  sought  by  a  stranger,  namely, 
that  a  father's  custody  of  his  own  children  is  thereby  dis- 
turbed, has  been  frequently  obviated  in  this  country  by  stat- 
ute. And  in  many  States,  while  the  father  is  living,  probate 
guardians  are  appointed,  whose  powers,  being  limited  to  the 
infant's  estate,  do  not  come  in  conflict  with  the  parental  right 
to  the  ward's  person.^  Yet  in  other  States  the  probate 
courts  can  only  grant  guardianship  to  orphans,  that  is,  to 
fatherless  children ;  ^  and  where  this  is  the  case,  chancery 
might  assume  jurisdiction  in  an  extreme  case,  though  the 
father  were  living. 

Most  frequently  the  court's  discretion  is  to  be  exercised, 
whether  in  chancery  or  probate  appointments,  in  cases  where 
the  child  is  fatherless,  and  moreover  too  young  to  nominate 
for  himself.  Who,  then,  shall  be  selected  ?  The  mother,  if 
living  and  competent  for  the  trust,  would  appear  to  be  the 
most  suitable  person,  unless  remarried,  and  so  in  fact  is  she 
considered  in  this  country.  But  in  English  chancery  prac- 
tice it  is  said  that  no  great  importance  is  attached  to  her 
rights ;  while  undoubtedly  she  and  the  next  of  kin  have  to- 
gether the  first  claim.^  And  it  is  improper  to  appoint  the 
mother  without  some  information  as  to  the  father's 
family.^  On  the  other  hand,  the  court  *  refuses  to  *  416 
select  guardians  for  infants  residing  with  their  mother 
until  she  has  indicated  her  own  wishes.*' 

In  this  country,  probate  guardians  of  fatherless  children 
are  appointed  with  more  exclusive  reference  to  the  mother's 
choice,  and  the  next  of  kin  are  less  favorably  regarded.  And 
it  is  not  uncommon  to  find  guiding  princij^les  indicated  by 
statute  for  all  cases.     The  American  rule  is  clearly  stated  in 

1  12  Jur.  713.     And  see  Sponce's  Case,  2  Ph.  247  ;  Ball  v.  Ball,  2  Sim.  35. 
'•i  Mass.  Gen.  Sts.  c.  109,  §  4 ;  Clark  v.  Montgomery,  23  Barb.  464. 
3  Poston  V.  Young,  7  J.  J.  Marsh.  501 ;  Hall  v.  Lay,  2  Ala.  529. 
*  Macphers.  Inf.  112.  6  Cooke's  Case,  6  E.  L.  &  Eq.  47. 

6  Lockwood  V.  Fenton,  17  E.  L.  &  Eq.  90 ;  In  re  Thomas,  21  E.  L.  &  Eq.  624. 
As  to  other  relatives,  see  Macphers.  Inf.  112. 

[445] 


*416  GUARDIAN  AND  WARD. 

a  recent  New  Jersey  case:  namely,  that  the  mother,  and, 
after  the  mother,  the  next  of  kin,  of  an  infant  under  fourteen 
is  entitled  to  preference,  and  that  such  claim  cannot  be  disre- 
garded unless  for  some  satisfactory  reason.^ 

It  is  further  stated,  in  this  case,  that  a  greater  latitude  is 
allowed  to  the  court,  as  between  relatives  having  no  legal 
claim  to  the  services  of  the  child  and  the  natural  guardian  ; 
and  reasons  which  might  be  deemed  insufficient  to  bar  the 
mother's  rights  might  decide  as  between  other  relations.^ 

The  leading  consideration  for  the  court  should  be  the  inter- 
est and  welfare  of  the  child  ;  and  this,  which  becomes  almost 
the  only  rule  of  choice  between  distant  kindred,  may  control 
even  the  selection  of  the  father  himself.^  Hence,  in  a  case 
where  children  had  been  left  with  their  grandparents  for  many 
years  with  the  consent  of  the  father,  who  was  a  widower  and 
a  seafaring  man,  guardianship  Avas  refused  to  their  uncle, 
though  he  had  been  designated  by  the  father  on  his  death- 
bed.^ If  the  child  is  fatherless,  and  the  mother's  manner  of 
life  would  be  likely  to  exercise  an  unfavorable  influence,  she 
will  not  be  appointed,  nor  wiU  her  wishes  have  much  weight.^ 
Nor  is  the  appointment  of  an  executor  or  administrator  desir- 
able, if  a  conflict  of  interests  is  thereby  created.^  Nor 
*  417  the  selection  of  a  *  stranger,  when  the  next  of  kin  can 
be  had,  unless  the  parent  expressly  desires  it.'  Nor  of 
one  who  holds  adverse  religious  opinions,  though  there  is  at 
this  day  far  more  toleration  than  formerly  on  this  point,  and 
perhaps  more  in  the  United  States  than  in  Great  Britain.^ 

1  Albert  v.  Perry,  1  McCart.  540.  And  see  Read  v.  Drake,  1  Green  Ch.  78  ; 
Allen  V.  Peete,  25  j\Iiss.  29 ;  People  v.  Wilcox,  22  Barb.  178 ;  Ramsay  v.  Ram- 
say, 20  Wis.  507  ;  Leavel  v.  Bettis,  3  Bush,  74 ;  Lord  v.  Hough,  37  Cal.  657. 
There  may  be  a  probate  guardian  appointed  over  a  child  against  the  wishes  of 
a  man  and  wife  who  have  agreed  in  writing  with  the  mother  to  take  care  of  the 
child  under  certain  stipulations.     Gloucester  v.  Page,  105  Mass.  231. 

2  Albert  v.  Perry,  1  McCart.  540. 

3  Bennett  v.  Byrne,  2  Barb.  Ch.  216 ;  Compton  v.  Compton,  2  Gill,  241. 

4  Foster  v.  Mott,  3  Bradf  409.  »  Albert  i-.  Perry,  1  McCart.  540. 

6  Crutchfield's  Case,  3  Yerg.  336 ;  Isaacs  i'.  Taylor,  3  Dana,  600  ;  Massingale 
V.  Tate,  4  Hayw.  30;  Parker  v.  Lincoln,  12  Mass.  17. 

7  See  Sullivans'  Case,  1  Moll.  225 ;  Morehouse  v.  Cooke,  Hopk.  226  ;  Lady 
Teynham  t-.  Lennard,  cited  2  Atk.  315 ;  Spaun  v.  Collins,  10  S.  &  M.  624. 

8  Underbill  v.  Dennis,  9  Paige,  202;  Macphers.  Inf.  113  ;  Ex  parte  Whitfield^ 
2  Atk.  315 ;  Voullaire  v.  VouUaire,  45  Mis.  602. 

[446] 


APPOINTMENT  OF  GUARDIANS.  *  417 

And  the  objection  that  a  particular  appointment  will  subject 
the  ward's  estate  to  extraordinary  expense  ought  to  be  con- 
sidered.^ In  general,  it  is  the  duty  of  the  court  to  regard  the 
general  character  of  the  person  who  applies  for  letters  of 
guardianship ;  the  influence  he  is  likely  to  exert,  and,  if  the 
estate  be  difficult  to  manage,  his  business  qualifications. 

On  the  other  hand,  no  fanciful  reasons  should  be  allowed  to 
determine  the  selection  of  the  court  between  distant  relations. 
The  circumstance  that  the  infant  inherited  the  principal  part 
of  his  property  through  one  line  of  the  family  is  not  to  prej- 
udice his  next  of  kin  in  the  other.^  But  the  fact  that  he  has 
always  been  in  the  charge  of  his  relatives  on  one  side  is 
entitled  to  weight.^  If  children  are  already  in  a  good  home, 
this  is  a  reason  why  they  should  not  be  disturbed.  But  the 
mother's  consent  to  relinquish  them  to  a  certain  relative  is  of 
little  avail,  for  it  might  have  been  extorted  from  her  under 
pressure  of  poverty."*  Although  the  prudent  choice  of  a 
minor  arrived  at  fourteen  may  be  almost  conclusive,  as  we 
have  already  seen,  yet  it  would  seem  that  while  under  that 
age  his  preferences  are  entitled  to  no  consideration. 

The  father's  testament  constitutes  a  guardian  ;  but  when 
the  appointment  is  too  informal  to  take  effect  under  the  stat- 
ute, as  constituting  testamentary  guardianship,  a  chancery  or 
probate  guardian  must  be  appointed.  In  such  case,  the  choice 
thus  informally  indicated  carries  great  weight  with  the 
court.^  And  *  on  general  principle  the  death-bed  *  418 
wishes  of  the  father  are  considered  by  the  court ;  so 
those  of  the  mother,  in  States  where  the  mother's  choice  is 
favored  at  all.*'  Such  wishes  are  not  conclusive  upon  the 
court ;  and  yet  they  may  sometimes  be  sufficient  to  turn  the 
scales. 

As  concerns  the  right  of  a  married  woman  to  be  appointed 

»  Bennett  v.  Byrne,  2  Barb.  Ch.  216. 

'^  Underhill  v.  Dennis,  9  Paige,  202 ;  Albert  v.  Perry,  1  McCart.  540. 

3  Albert  v.  Perry,  1  McCart.  540.  <  lb. 

5  Hall  V.  Storer,  1  Yo.  &  C.  556. 

6  Knott  V.  Cottee,  2  Ph.  102;  Kaye's  Case,  L.  R.  1  Ch.  087  ;  Lady  Tcynham 
V.  Lennard,  4  Bro.  P.  C.  302 ;  s.  c.  cited  2  Atk.  315  ;  Bennett  v.  Byrne,  2  Barb. 
Ch.  216 ;  Cozine  v.  Home,  1  Bradf.  143  ;  Watson  v.  Warnock,  31  Geo.  716  ;  In  re 
Turner,  4  C.  E.  Green,  433. 

[447] 


*  418  GUARDIAN   AND  WARD. 

guardian,  there  is  doubt  and  uncertainty.  The  dicta  are  apt 
to  go  one  way  and  the  decisions  another ;  doubtless  out  of 
judicial  deference  to  the  sex.  Some  hold  that  married  women 
are  at  common  law  capable  of  becoming  guardians  ;  but  they 
draw  their  conclusions  rather  from  the  analogies  of  adminis- 
tration, than  from  positive  authority  in  their  favor.  When  it 
is  considered  that  chancery  and  probate  guardians  are  a 
modern  creation,  the  ancient  cases,  from  such  species  of 
guardianshiiD  as  are  now  extinct,  are  hardly  worth  looking 
after.  It  is  true  there  are  several  cases  which  sustain  the  acts 
of  married  women  while  acting  as  guardians,  or  rather  quasi 
guardians ;  at  the  same  time  clear  precedents  for  their  actual 
appointment  are  wanting.^  It  is  lately  held  in  the  English 
chancery  court,  that,  while  a  married  woman  may  be  co-guar- 
dian with  a  man,  her  sole  appointment  is  improper.^  In  spite 
of  the  liberal  tendency  of  the  age,  we  conclude  that  while 
such  guardianship  would  not  be  deemed  absolutely  void,  and 
is  in  fact  sometimes  sanctioned  without  investigation,  public 
policy  is  decidedly  against  the  appointment.  Not  the  least 
important  objection  is  the  inability  of  married  women  to  fur- 
nish proper  recognizance,  and  to  manage  trust  property  with- 
out constantly  encountering  legal  obstacles,  all  the  more 
troublesome  from  the  present  uncertainty  of  the  law  of  hus- 
band and  wife.  Hence,  the  English  rule  has  been  on  the 
marriage  of  a  female  guardian  to  choose  another  in  her  stead, 
on  the  ground  that  she  is  no  longer  sui  juris,  and  has  become 
liable  to  the  control  of  her  husband  ;  while  she  is  said  to  be 
still  at  liberty  to  go  before  the  master  to  propose  herself  as 
her  own  successor.^ 

*  419        *  Persons  residing  out  of  the  jurisdiction  will  not 

usually  be  appointed  guardians,  although  one  who  was 
out  of  the  State  might  yet  control  from  a  distance  ;  for,  it  is 

1  Wallis  V.  Campbell,  13  Ves.  517.  This  was  the  case  of  an  illegitimate  child 
As  cited  in  Macphers.  Inf.  Ill,  it  might  be  considered  authority  for  the  appoint 
ment  of  married  women  as  guardians. 

2  In  re  Kaje,  L.  R.  1  Ch.  387.     See  Macphers.  Inf.  Ill  ;  Anon.,  8  Sim.  846 
Gomall's  Case,  1  Beav.  847.     See  further,  Jarrett  v.  State,  5  Gill  &  Johns.  27 
Palmer  v.   Oakley,  2  Doug.  433 ;    Farrer  v.   Clark,  29    Miss.   195 ;    HoUey  i; 
Chamberlain,  1  Redf.  333 ;  Kettletas  v.  Gardner,  1  Paige,  488 ;  Ex  parte  Max- 
well, 19  Ind.  88. 

[448] 


APPOINTMENT   OF  GUARDIANS.  *  419 

said,  there  must  be  some  one  answerable  to  the  covirt.^  But 
if  the  sureties  on  the  guardian's  bond  reside  within  the  juris- 
diction and  are  pecuniarily  responsible,  is  not  some  one 
answerable  to  the  court  ?  The  cases,  however,  are  rare  where 
such  an  appointment  would  be  advantageous  to  the  ward  for 
business  reasons  ;  and  hence,  others  are  usually  chosen,  both 
in  chancery  and  probate.  In  some  of  the  United  States,  the 
appointment  of  non-residents  is  prohibited  by  statute  ;  and 
even  without  such  prohibition  the  court  is  justified  in  with- 
holding letters  of  guardianship  at  discretion,  where  the  peti- 
tioner is  beyond  the  reach  of  State  process.^  But  the  person 
selected  need  not  reside  within  the  urisdiction  of  the 
county  court  making  the  appointment.  Where  infants  are 
domiciled  abroad,  some  one  at  home  will  be  appointed,  if  a 
guardian  is  required,  even  though  the  father  wishes  it  other- 
wise.^ Exceptions  to  this  rule  have  been  made  in  strong 
cases,  and  a  non-resident  guardian  appointed.* 

Third.  The  usual  practice  in  chancery  is  for  the  court,  as 
soon  as  the  petition  is  presented,  to  make  an  order  for  a  refer- 
ence to  a  master  to  approve  of  a  proper  person  for  the  guar- 
dianship. For  this  purpose,  the  master  is  attended  by  all 
proper  parties  ;  and,  after  a  full  hearing,  he  makes  his  report, 
in  which  he  mentions  the  infant's  age  and  fortune,  the  evi- 
dence and  legal  grounds  on  which  his  approval  of  the  guar- 
dian is  based,  and  the  maintenance  proper  for  the  child.  The 
Vice-Chancellor  confirms  or  varies  the  report  at  his  discre- 
tion, and  then  makes  the  appointment.  From  his  decision 
appeal  lies  to  the  full  court.^ 

*  The  guardian  thus  appointed,  if  guardian  of  the    *  420 
person  and  estate,  is  required  to  enter  into  recogni- 
zance, with  sufficient  sureties,  to  account  regularly  or  when- 
ever called  upon,  by  the  court.     But,  according  to  the  mod- 


1  Logan  V.  Fairlee,  Jacob,  193. 

2  Finney  v.  State,  9  Mis.  227.      Tliere  is   no   such   prohibition   in   Maine. 
Berry  v.  Johnson,  53  Me.  401. 

3  Stephens  v.  James,  1  M.  &  K.  627 ;  Lethem  v.  Hall,  7  Sim.  141. 

♦  Daniel  v.  Newton,  8  Eeav.  485  ;  In  re  Thomas,  21  E.  L.  &  Eq.  524. 
5  Macphers.  Inf.  lOG,  107,  and  cases  cited;  2  Kent  Com.  227. 

29  [  449  ] 


*420  GUAEDIAN   AND   WARD. 

ern  English  practice,  guardians  of  the  person  and  not  of  the 
-estate  are  exempted  from  tliis  requirement.^ 

In  some  cases,  guardians  are  appointed  b}'  the  court  with- 
out reference  to  a  master.  Thus,  where  the  father  applies,  or 
the  infant  above  fourteen  makes  a  selection,  the  court  acts 
without  reference,  out  of  regard  for  their  special  privilege .^ 
And  where  the  property  of  the  infant  is  very  small,  the  same 
favor  has  been  granted,  in  order  to  save  legal  expense  to  the 
estate.^  The  child  should  usually  be  present  at  the  hearing ; 
but,  in  a  recent  Irish  case,  the  court  dispensed  with  the  re- 
quirement, on  evidence  that  the  child  was  less  than  a  month 
old  and  of  delicate  health.* 

Our  American  practice  in  the  appointment  of  probate  guar- 
dians is  usually  more  simple.  Petition  is  presented  by  the 
person  desiring  the  appointment,  whereupon  a  citation  is 
issued,  for  all  parties  interested  to  appear  on  a  certain  court 
day.  The  judge,  upon  the  day  specified,  after  a  summary 
hearing,  appoints  the  guardian,  and  issues  letters  of  guardian- 
ship upon  filing  bond  with  proper  security.  Appeal  may  be 
taken  within  a  limited  time  by  any  person  aggrieved,  and  the 
tribunal  of  last  resort  then  hears  the  parties,  determines  the 
choice,  and  makes  a  final  decree, — to  which  the  lower  court 
conforms  and  issues  letters  of  guardianship  accordingly.  The 
infant,  if  under  fourteen,  is  rarely  produced  in  court,  nor  does 
the  judge  make  an  order  of  reference.^ 

Fourth.     The  appointment  of  a  chancery  guardian  is  of 

itself  an  act  exercised  by  the  court  of  highest  author- 

*421    ity,  in  such  matters.     *  The  appointment  cannot  be 

impeached  elsewhere,  nor  set  aside  by  a  common-law 

tribunal.     The  court  which  creates  the  guardian  superintends 

1  Macpliers.  Inf.  107,  108 ;  2  Kent  Com.  227. 

2  Supra,  pp.  409,  415 ;  Macphers.  Inf.  78,  109. 

3  Bond,  Ex  parte,  11  Jur.  114. 

4  Stutely  V.  Harrison,  1  Irecl.  Eq.  256;  13  Jur.  800.  And  see  Benison  v.  Wors- 
ley,  15  E.  L.  &  Eq.  317. 

s  For  practice  in  particular  States,  see  local  statutes;  also  Smith's  (Mass.) 
Prob.  Practice;  Comst.  Dig. ;  Reese  (Geo.)  Manual;  Watson  v.  Warnock,  31 
Geo.  716.     Next  of  kin  may  appeal.     Taflfy.  Hosmer,  14  Mich.  249. 

[450] 


APPOINTMENT   OF   GUARDIANS.  *421 

his  acts  and  removes  him  if  necessary.  Such  is  the  nature  of 
chancery  jurisdiction  wherever  it  exists.^  But  the  effect  of 
appointments  made  by  probate  authority  is  not  the  same.  In 
general,  the  same  principles  apply  as  in  grants  of  adminis- 
tration ;  probate  jurisdiction  being  much  the  same  whether 
over  the  estates  of  deceased  persons  or  of  infants.  For  fraud 
or  excess  of  jurisdiction,  letters  of  probate  guardianship  may 
be  attacked  collaterally  ;  not  otherwise.  And  a  person  sued 
in  the  common-law  courts  cannot  defend  on  the  ground  that 
the  guardian  is  unsuitable  for  his  trust.  The  letters  of  guar- 
dianship sufficiently  disprove  it.  They  are  the  guardian's 
credentials  of  authority  everywhere,  and,  if  improperly  issued, 
should  be  revoked  by  the  court  which  can  issue  them.^ 

The  decree  of  the  court  appointing  a  guardian  is  prima 
facie  evidence  of  the  ward's  disability ;  ^  and  is  even  held 
conclusive  in  some  cases.  It  would  be  unreasonable  to  com- 
pel the  guardian  of  an  insane  person  or  spendthrift  to  furnish 
proof  of  his  ward's  condition  in  every  collateral  suit  on  his 
behalf,  and  to  encounter  new  investigations  of  facts  already 
established,  concerning  which  men's  minds  greatly  differ. 
But  the  prima  facie  evidence  of  infancy  is  generally  simple 
and  easily  obtained.  The  authority  of  his  guardian  turns 
upon  a  simple  question  of  fact :  the  date  of  birth.  And 
while  we  apprehend  that  the  recitals  contained  in  letters  of 
guardianship  afford  ^:>rma  facie  proof  on  this  point,  in  all 
contests  involving  the  guardian's  authority,  the  pre- 
sumption *  thus  raised  must  be  very  slight,  since  it  is  *  422 
common  to  issue  letters  of  probate  guardianship  upon 
the  mere  allegation  of  infancy  in  the  petition  and  without 
special  proof.* 

1  Macphers.  Inf.  119. 

2  Speight  V.  Knight,  11  Ala.  461  ;  Kimball  v.  Fisk,  39  N.  H.  110  ;  Mathews  f. 
Wade,  2  W.  Va.  464 ;  Warner  v.  Wilson,  4  Cal.  310.  As  to  the  effect  of  defec- 
tive notice  in  probate  appointments,  see  Davison  v.  Johonnot,  7  Met.  388  ;  Breed 
V.  Pratt,  18  Pick.  115;  Brigham  v.  Boston,  &c.,  R.  R.  Co.,  102  Mass.  14  ;  Cleve- 
land V.  Hopkins,  2  Aik.  394;  Redman  v.  Chance,  32  Md.  42;  Chase  v.  Hath- 
away, 14  Mass.  222;  People  v.  Wilcox,  22  Barb.  178;  Palmer  v.  Oakley,  2 
Doug.  433;  Sears  v.  Terry,  26  Conn.  273;  Gronfier  v.  Puymirol,  19  Cal.  629. 
As  to  other  informalities,  see  State  v.  Hyde,  29  Conn.  564  ;  Lee  v.  Ice,  22 
Ind.  384.  3  White  v.  Palmer,  4  Mass.  147. 

*  Leonard  v.  Leonard,  14  Pick.  280.     See  2  Greenl.  Evid.  §§  363-368. 

[451] 


*  422  GUARDIAN  AND   WARD. 

One  who  has  been  appointed  guardian  and  acted  as  such, 
cannot  deny  the  jurisdiction  of  the  court  which  appointed 
him  in  a  collateral  suit.^  If  he  ascertains  that  his  appoint- 
ment was  without  jurisdiction,  he  should  surrender  his  letters 
at  once  and  cease  to  act. 

The  principles  of  the  civil  law,  as  later  adopted  in  Holland, 
France,  and  Spain,  with  reference  to  the  jurisdiction  and 
method  of  appointing  guardians,  differ  not  greatly  from  ours. 
The  jurisdiction  competent  to  make  the  selection  was  that  of 
the  domicile  of  the  minor,  or  in  which  his  property  was  situ- 
ated. Under  the  French  code,  a  family  council  is  called 
together  at  the  instance  of  the  parties  interested,  and  nom- 
inates a  suitable  person  or  persons  to  take  the  trust,  where 
the  children  are  orphans  and  not  otherwise  provided  for  ; 
and  these  persons,  when  they  are  approved  by  the  judge,  take 
an  oath  well  and  faithfully  to  discharge  their  trust  and  com- 
plete the  necessary  qualifications.  In  Louisiana,  the  selection 
is  made  by  the  family  council  in  the  same  manner. ^ 

1  Thurston  v.  Holbrook's  Estate,  31  Vt.  354 ;  Hines  v.  Mullius,  25  Geo.  696 ; 
Fox  V.  Minor,  32  Cal.  111. 

■i  3  Burge  Col.  &  For.  Laws,  938-943  ;  2  Kent  Com.  231. 


[452] 


TERMINATION  OF   GUAEDIAN'S  AUTHORITY.        *  423 


*  CHAPTER    III.  *423 

TERMINATION    OF  THE  GUARDIAN'S   AUTHORITY. 

Guardianship  lasts  imti]  the  end  of  the  period  for  which  it 
was  instituted.  But  it  may  be  sooner  terminated  by  the 
death  or  marriage  of  the  ward,  or  by  the  death,  resignation, 
removal,  or  supersedure  of  the  guardian  himself ;  or,  if  the 
guardian  be  a  female,  by  her  marriage.  These  topics  will  be 
considered  in  order. 

As  the  relation  of  guardian  and  ward  usually  exists  for 
merely  temporary  purposes,  it  is  plain  that  when  those  pur- 
poses are  fulfilled,  the  trust  must  terminate.  The  object  of 
guardianship,  in  the  case  of  infants,  is  fulfilled  when  the  in- 
fant becomes  of  age,  for  he  is  then  free  and  competent  under 
the  law  to  transact  his  own  business  and  control  his  own  per- 
son. No  guardian  therefore,  of  an  infant,  whether  a  socage, 
natural,  testamentary,  chancery,  or  probate  guardian,  can  act 
after  the  ward  is  twenty-one  years  old.i 

But  the  natural  limitation  of  the  guardian's  authority  may 
be  even  sooner,  if  derived  from  testamentary  appointment. 
For  the  testator  may  designate  a  shorter  period  or  some  par- 
ticular event  which  shall  determine  the  relation.  Thus,  if  he 
appoints  his  wife  to  be  guardian  until  her  remarriage,  her 
trust  terminates  on  marrying  again.^  And  if  no  successor 
was  indicated  in  the  will,  a  chancery  or  probate  appoifttment 
must  supply  the  vacancy.^ 

*The  legal  authority  of  guardians  in  socage  also  *  424 
terminated,  strictly  speaking,  when  the  infant  became 

1  1  Bl.  Com.  461,  462,  Harg.  n. ;  2  Kent  Com.  221-227. 

■'  Selby  !■.  Selby,  2  Eq.  Ca.  Ab.  488;  Holmes  i-.  Field,  12  111.  424  ;  Corrigan 
V.  Kiernan,  1  Bradf.  208. 

»  Macphers.  luf.  104,  and  cafes  cited  ;  supra,  pp.  307,  408,  41f!. 

[453] 


*  424  GUARDIAN  AND  WARD. 

fourteen.^  So  did  that  of  guardians  for  nurture,  as  distin- 
guished from  those  by  nature  .^  This  was  because  the  ward 
was  recognized  as  partially  qualified  to  act  for  himself,  having 
passed  through  the  period  of  nurture.  He  was  then  allowed 
to  elect  a  guardian.^  Still  the  guardianship  continued  effect- 
ual during  minority  in  both  cases,  unless  a  new  choice  was 
made  by  the  ward.^  But  no  guardians  in  socage,  for  nurture, 
testamentary,  or  by  judicial  appointment  were  ever  rendered 
devoid  of  power,  by  the  mere  fact  that  the  infant  had  passed 
the  period  of  nurture.  An  anomalous  exception  is  found  in 
Ohio,  where  it  has  been  held  that  probate  guardianship 
wholly  ceases  when  the  ward  reaches  twelve,  if  a  female,  or 
fourteen,  if  a  male,  and  that  a  new  appointment  must  then 
be  made.^  This  rule  is,  however,  one  of  statutory  construc- 
tion. 

Ko  more  precise  limit  can  be  assigned  to  the  authority  of 
guardians  over  insane  persons  and  spendthrifts,  than  that  of 
the  ward's  necessities.  When  he  becomes  restored  to  reason 
or  is  otherwise  fit  to  control  his  own  person  and  estate,  this 
guardianship  ceases  ;  for  the  purposes  of  the  trust  are  felt  no 
longer.  But  a  period  so  difficult  to  fix  should  be  judicially 
determined ;  for  which  cause  a  formal  discharge  from  guar- 
dianship is  to  be  sought  and  obtained,  and  meantime  the 
guardian's  authorit}^  will  continue.^ 

Death  of   the  ward   necessarily  terminates  guardianship. 
And  after  the  ward's  death  the  guardian's  only  duty 
*  425    is  to  settle  up  his  *  accounts  and  pay  the  balance  in  his 
hands  to  the  ward's  personal  representatives,  where- 
upon his  trust  is  completely  fulfilled. 

The  lawful  marriage  of  any  ward,  whether  male  or  female, 

1  1  Bl.  Com.  461,  Harg.  n. ;  2  Kent  Cora.  222.  -'  lb. 

8  1  Bl.  Com.  462,  Harg.  n. ;  and  see  ch.  1,  supra. 

*  Ilex  V.  Pierson,  Andr.  313  ;  Mendes  i'.  Mendes,  3  Atk.  624.  And  see  Mae- 
phers.  Inf.  41,  65 ;  Byrne  v.  Van  Hoesen,  5  .Johns.  66. 

s  Perry  v.  Brainard,  11  Ohio,  442;  Maxsom  v.  Sawyer,  12  Ohio,  195.  See 
Dibble  v.  Dibble,  8  Ind.  307  ;  Matter  of  Dyer,  5  Paige,  534. 

e  Dyce  Sombre's  Case,  1  Phil.  Ch.  437 ;  Hovey  v.  Harmon,  49  Me.  269 ; 
Wendell's  Case,  1  Johns.  Ch.  600;  Kimball  v.  Fiske,  39  N.  H.  110;  Chase  v. 
Hathaway,  14  Mass.  222. 

[454] 


TERMINATION   OF   GUARDIAN'S   AUTHORITY.        *  425 

must  necessarily  affect  the  rights  of  the  guardian.  So  far  as 
the  ward's  person  is  concerned,  there  can  be  no  question  that 
the  guardianship  ends.  jNIarriage  is  paramount  to  all  other 
relations,  and  its  proper  continuance  being  inconsistent  with 
guardianship  of  the  person,  the  latter  yields  to  it,  whatever 
may  be  the  sex  of  the  ward.  But  as  to  the  estate  the  rule, 
in  view  of  late  married  women's  statutes,  is  not  so  clear.  If, 
however,  a  male  ward  marries  a  female,  whether  she  be  minor 
or  adult,  his  guardian  retains  power  over  his  estate,  as  before, 
until  he  becomes  of  age.-^ 

Hence  arises  a  difficulty  where  a  male  and  female  ward 
marry,  both  being  minors, and  having  estates  in  the  hands  of 
their  respective  guardians.  Does  the  husband,  though  under 
age,  take  all  the  rights  of  an  adult  husband  ?  Or  does  the 
wife's  estate  remain  in  keeping  of  her  guardian  until  the 
husband  is  old  enough  to  control  it  in  person  ?  The  better 
opinion  is  that  it  goes  to  the  husband,  whatever  his  age.  The 
inevitable  consequence  is  that  the  husband's  guardian  must 
take  it  from  the  wife's  guardian,  and  hold  both  estates  during 
minority.  This  seems  an  awkward  arrangement,  but  it  is 
nevertheless  the  lawful  one.  More  troublesome  would  be  a 
case  under  the  recent  statutes  in  this  country  relative  to 
married  women,  concerning  Avhich  we  do  not  find  a  judicial 
decision.  But  it  seems  the  technical  rule  applies,  as  before, 
to  the  detriment  of  the  female  ward's  interests.  It  might  be 
well  to  declare  by  statute  that  the  wife's  guardian  shall  con- 
tinue to  manage  her  estate  during  her  minority .^ 

The  marriage  of  the  female  ward,  it  is  said,  does  not,  ipso 
facto^  determine  the  authority  of  her  guardian  over  her 
estate.     *  Hence  an  order  of  court,  transferring  the    *  426 
custody  of  the  property  to  the  husband,  is  first  neces- 
sary ;  to  which  order  the  husband  will  be  entitled  upon  mo- 
tion.    Such  is  the  rule  declared  in  Kew  York.^     But  while  in 

1  Reeve  Dom.  Rel.  328;  2  Kent  Com.  22G ;  Bac.  Abr.  Guardian  (E) ;  Eyre 
V.  Countess  of  Shaftesbury,  2  P.  Wms.  103 ;  Mendes  v.  Meiules,  3  Atk.  Cl'J  ;  ib. 
1  Ves.  89  ;  Jones  v.  Ward,  10  Yerp.  IGO. 

-  See  Reeve  Dom.  Rel.  S28 ;  2  Kent  Com.  22G;  Anon.,  8  Sim.  S-IG. 

3  Wliitaker's  Case,  4  Jobns.  Ch.  376.  But  see  contra,  Jones  i'.  Ward,  10  Yerg. 
IGO ;  Nicholson  i'.  Wilborn,  13  Geo.  4G7  ;  Anon.,  8  Sim.  3JG  ;  Armstrong  v. 
Walkup,  12  Gratt.  608. 

[455] 


*  426  GUARDIAN  AND  WARD. 

England  the  Court  of  Chancery  never  apj^oints  a  guardian 
for  a  female  infant  after  marriage,  neither  does  it  discharge 
an  order  for  a  guardian  because  of  marriage  ;  because,  as  Mr. 
Macpherson  thinks,  the  marriage  of  a  female,  if  valid,  super- 
sedes guardianship,  of  its  own  force. ^  Probate  wards  in  this 
country  are  frequently  married,  and  their  guardians  settle 
their  accounts  without  order  of  court  or  revocation  of  letters, 
on  the  supposition  that  the  marriage  ipso  facto  puts  an  end  to 
their  authority.  In  some  recent  cases  of  alleged  trespass  on 
a  female  infant's  lands,  it  has  been  ruled  that  the  adult  hus- 
band succeeds  to  the  j)lace  of  her  guardian,  all  other  guar- 
dianship ceasing  at  her  marriage.^.  And  it  is  held  that  a 
female  infant's  guardian  is  not  responsible  to  her  for  money 
which  was  hers,  and  which  he  has  paid  over  to  her  adult 
husband,  in  good  faith,  without  any  notice  or  presumption  of 
her  non-concurrence.^ 

Guardianship  is  terminated  by  the  .death  of  the  guardian. 
But  the  ward  does  not  thereby  necessarily  become  free,  for  a 
successor  in  the  trust  continues  to  control  him.  The  execu- 
tor or  administrator  of  the  guardian,  as  such,  has  no  author- 
ity ;  for  guardianship  is  a  personal  trust  and  not  transmissible. 
But  he  should  close  the  accounts  of  the  deceased  guardian  in 
court  and  pass  the  balance  over  to  the  successor.  This  suc- 
cessor is  the  person  next  indicated  in  the  will  appointing 
testamentary  guardians,  or  the  survivor  of  joint  guardians,  or 
some  one  appointed  in  chancery  or  probate  to  fill  the  vacancy, 
as  the  case  may  be.^ 

The  office  of  a  guardian  was  regarded  as  something  so 
honorable  at  the  common  law  that  it  could  not  be  easily 
refused,  much  less  resigned.  Natural  guardians,  of  neces- 
sity, could  not  resign.  We  have  seen,  in  another  connection, 
how  far  the  natural  guardian  may  practically  surrender  his 
children's  custody,  by  allowing  others  to  adopt  them,  by 
placing  them  in  a  charitable  institution,  and  the  like ;  which 

1  Macphers.  Inf.  113,  citing  Roach  v.  Garvan,  1  Ves.  160 ;  8  Sim.  336. 
'i  Porch  V.  Fries,  3  C.  E.  Green,  204  ;  Bartlett  v.  Cowles,  15  Gray,  445. 
3  Beazley  v.  Harris,  1  Bush,  533. 
*  Co.  Litt.  89;  Bac.  Abr.  Guardian  (E). 

[  456  ] 


TERMINATION   OF   GUARDIAN'S   AUTHORITY.        *  426 

is  the  only  sense  in  which  this  guardianship-may  be  considered 
as  voluntarily  transferred.  So  guardians  in  socage, 
being  designated  *  b}'  the  law,  could  not  in  strictness  *  427 
resign  ;  if  they  could  shift  their  authority  at  all,  it 
must  have  been  by  assignment.  There  is  reason  to  believe 
that,  before  the  statute  of  Marlbridge,^  they  could  assign, 
but  only  to  the  extent  of  placing  the  ward's  body  in  custody 
of  another.  In  later  times,  no  assignment  whatever  has  been 
permitted.  For,  as  Lord  Commissioner  Gilbert  observed, 
guardianship  in  socage  is  an  interest,  not  of  profit,  but  of 
honor,  committed  to  the  next  of  kin,  inherent  in  the  blood  ; 
and  therefore  not  assignable.^ 

The  resignation  of  a  testamentary  guardian  is  not,  as  a 
rule,  permitted.  In  1752,  the  guardians  of  the  young  Earl  of 
Spencer,  who  was  then  in  his  eighteenth  j'ear,  petitioned  the 
Court  of  Chancery  that  they  might  be  discharged  from  their 
trust,  as  he  was  then  going  abroad  on  his  travels,  and  would 
not  be  under  their  care.  Lord  Hardwicke  (as  the  reporter 
says)  refused  it  with  some  warmth,  as  a  thing  which  had 
never  been  done  at  the  request  of  the  guardians  themselves  ; 
and  added  that,  if  they  would  not  continue  to  act  in  the 
trust,  as  they  had  accepted  it,  he  should  compel  them.  But 
afterwards,  at  the  importunity  of  counsel,  finding  that  the 
mother  and  the  infant  also  acceded  to  the  request,  he  yielded 
so  far  as  to  allow  a  petition  to  be  filed  on  behalf  of  the  infant, 
upon  which  he  made  an  order  that  the  care  and  direction  of 
the  infant's  education  and  person  should  be  committed  to  two 
near  relatives  until  further  order,  and  that  the  allowance  for 
his  maintenance  and  education  should  be  j)aid  to  them.  But 
in  doing  so  the  Lord  Chancellor  declared  that  while  the  spe- 
cial circumstances  of  this  case  justified  his  action,  he  would 
not  in  general  comply  with  such  petitions,  nor  should  this 
case  be  drawn  into  precedent.  The  court,  he  added,  must 
take  care  of  the  infant,  even  though  it  did  not  punish  the 
guardian  for  not  doing  so.^  * 

1  52  Ilcn.  3,  c.  17. 

'^  Gilb.  Eq.  Rep.  175.  For  full  discussion,  see  Macphers.  Inf.  25-27  ;  Co.  Litt. 
88  h,  Harg.  n.  13,  and  authorities  cited. 

'^  Spencer  v.  Earl  of  Chesterfield,  Ainbl.  14G. 

[  457  ] 


*  4:27  GUARDIAN   AND  WARD. 

Though  this  was  a  case  of  testamentary  giiardian- 

*  428    ship,  we  *  presume   the  rule  to  be   equally  strict,  or 

nearly  so,  in  case  of  a  chancery  guardian.  In  either 
instance  the  court  can  make  an  order,  as  deemed  best  for  the 
infant's  interests.  There  need  be  no  summary  removal. 
Chancellor  Kent,  in  Ex  parte  Crumb,  claimed  that  chancery 
could  doubtless  discharge  or  charge  a  guardian,  even  if  ap- 
pointed by  a  surrogate ;  but  that  in  the  case  of  a  testamentary 
guardian  there  should  be  very  special  reasons  for  interfer- 
ence. He  refused  here,  however,  to  make  any  change,  there 
being  no  special  cause  shown.^ 

It  is  now  frequently  provided  by  statute  that  probate  guar- 
dians and  other  trust  officers  may,  in  the  discretion  of  the 
court,  be  allowed  to  resign.  But  in  absence  of  such  legis- 
lation it  would  appear  that  no  such  guardian  can  resign  as 
a  matter  of  right ;  nor  can  the  probate  court  legally  accept 
his  resignation  and  appoint  a  successor.  Yet  it  is  held  in 
Illinois  that,  under  a  statute  which  permits  the  judge  "  to 
remove  guardians  for  good  and  sufficient  cause,"  he  may  con- 
sider resionation  a  sufficient  cause,  and  thereupon  discharge 
the  guardian.2  There  is  something  harsh  and  offensive  in  the 
removal  of  a  guardian  from  office.  Moreover,  numerous  un- 
foreseen emergencies  may  arise,  so  as  to  render  the  contin- 
uance of  the  trust  improper ;  as  if  the  guardian  should  become 
a  confirmed  invalid,  or  make  himself  obnoxious  to  the  ward 
and  his  relations,  or  display  a  want  of  prudence  in  managing 
the  estate  not  inconsistent  with  good  intentions  nor  suffi- 
ciently gross  to  justify  a  court  in  removing  him.  He  might  be 
fully  aware  of  the  advantage  of  a  change  to  all  parties  con- 
cerned, and  might  desire  to  be  relieved,  provided  he  could 
withdraw  with  honor,  and  without  submitting  to  a  humiliat- 
ing investigation  of  petty  and  insufficient  grounds  of  complaint. 
This  opportunity  is  afforded  in  allowing  him  to  resign.  And 
further,  as  one  has  observed  of  testamentary  appointees,  "  it 
can  never  be  for  the  infant's  benefit  to  continue  him  in  the 
care  of  a  negligent  or  reluctant  guardian."  ^ 

1  Ex  parte  Crumb,  2  Johns.  Ch.  439.     See  2  Kent  Cora.  227. 

2  Young  I'.  Lorain,  11  111.  62-4.     See  Pepper  v.  Stone,  10  Vt.  427. 

'i  Macphers.  Inf.  128,  commenting  upon  Spencer  v.  Earl  of  Chesterfield,  supra. 

[458] 


TERMINATION  OF   GUARDIAN'S  AUTHORITY.       ♦  -429 

*  The  chancery  court  ma}'  undoubtedly  remove  all  *  429 
guardians  of  its  own  appointment  and  substitute  others 
at  discretion  for  proper  cause.  This  rule  extends  still  fur- 
ther: for,  according  to  American  authority,  chancery  may 
remove  all  guardians,  whether  appointed  by  the  court  itself, 
by  probate  tribunals,  by  testament,  or  even  by  express  act  of 
the  legislature,  whenever  the  guardian  abuses  his  trust  or  the 
interests  of  the  ward  require  it.^  This  statement  is  some- 
what too  sweeping,  so  far  as  the  English  courts  are  con- 
cerned. So,  too,  probate  tribunals  are  authorized  in  most  if 
not  all  of  the  States  to  remove  guardians  of  their  own  ap- 
pointment on  good  and  sufficient  cause. 

And  as  two  persons,  or  sets  of  persons,  cannot  at  the  same 
time  hold  the  same  trust,  it  follows  that  one  guardian  must 
be  removed,  or  a  vacancy  otherwise  created,  before  the  court 
can  make  a  new  appointment.  This  principle,  apparently 
simple,  has  sometimes  been  overlooked ;  when,  for  instance, 
a  court  has  issued  new  letters  without  revoking  the  old,  or 
seeks  to  supersede  a  testamentary  by  a  probate  guardian. 
The  appointment  of  a  new  guardian  does  not  of  itself  termi- 
nate the  authority  of  one  previously  chosen.  It  is  an  act 
without  jurisdiction,  and  void.  But  natural  guardians  need 
not  be  formally  removed,  nor  guardians  in  socage.  The  rule 
applies  only  to  guardians  testamentary  and  guardians  by 
judicial  appointment,  who  hold  by  a  higher  authority  than 
either  of  these. ^ 

If  a  guardian  does  not  behave  to  the  satisfaction  of  the 
Court  of  Chancery,  orders  regulating  his  conduct  are  fre- 
quently made  upon  him ;  and  if  any  such  steps  be  taken  as 
to  induce  suspicion  that  the  infant  will  suffer  by  the  conduct 
of  the  guardians,  the  court  will  interpose.^  This  is  the  Eng- 
lish rule  as  to  guardians  in  general.      But  in  this  country, 

1  Cowls  V.  Cowls,  3  Gilm.  435.  See  Ex  parte  Crumb,  2  Johns.  Ch.  439 ;  Dis- 
brow  V.  Henshaw,  8  Cow.  349. 

2  Bledsoe  i'.  Britt,  6  Yerg.  458  ;  Grant  v.  Whitaker,  1  Murph.  231 ;  Robinson 
V.  Zollinger,  9  Watts,  169  ;  Fay  v.  Hurd,  8  Pick.  528 ;  Thomas  v.  Burrus,  23 
Miss.  550 ;  2  Ch.  Cas.  237  ;  Morgan  i^.  Dillon,  9  Mod.  141 ;  Copp  v.  Copp,  20 
N.  H.  284. 

3  Roach  I'.  Garvan,  1  Yes.  IGO ;  Duke  of  Beaufort  v.  Berty,  1  P.  Wnis.  705. 

[459] 


*  429  GUAHDIAX  AND   WARD. 

*  430    probate  guardianship  *  is  usually  determined  for  mis- 

conduct by  a  summary  removal. 

There  can  be  no  removal  of  a  probate  guardian  without 
cause  shown.^  Courts  of  chancery  are  equally  bound  to  ob- 
serve this  principle ;  but  their  discretion  is  absolute.  A  mere 
stranger  'cannot  apply  to  have  a  guardian  removed  ;  it  must 
be  a  i)arty  in  interest.^  Nor  can  one  who  has  been  properly 
removed,  though  the  mother  herself,  claim  any  right  of 
recommending  a  successor.-^ 

Among  the  causes  which  have  been  deemed  sufficient  for 
the  removal  of  a  guardian  are  these  :  Appointment  to  the 
trust  without  proper  notice  to  other  parties  interested.*  Gross 
and  confirmed  habits  of  intoxication. ^  Any  breach  of  official 
duties  amounting  to  misconduct.^  Abandonment  of  the  trust.'' 
Ignorance  or  imprudence  on  the  part  of  the  guardian,  whereby 
the  ward's  interests  suffer.^  But  not  insolvency  alone ;  though 
it  is  otherwise  where  one  has  been  adjudged  a  bankrupt,  or 
is  guilty  of  fraud .^  Nor  is  intermeddling  with  the  estate 
before  qualification  as  guardian  a  ground  for  removal,  if  in 
good  faith  and  by  advice  of  counsel. ^'^  In  Indiana,  as  the 
statute  provides,  one  can  be  displaced  for  unfaithful  perform- 
ance of  the  trust  or  insufficient  seeurity.^^  Guardians  ma}-  in 
some  States  be  removed  wherever  it  will  be  for  the  ward's 
interest. ^^  And  it  aj^pears  that  there  may  be  a  combination 
of  circumstances  to  justify  the  removal. ^^  "  Improper  con- 
duct "  in  respect  of  the  care  of  the  property  or  of  the  ward's 
person  is  sometimes  the  statute  rule.^'^     And  in  Massachusetts 

1  Whitney  v.  Whitney,  7  S.  &  M.  740. 

2-Colton  V.  Goodson,  1  How.  (Miss.)  295. 

3  Hamilton  v.  Moore,  32  Miss.  205. 

*  Morehouse  v.  Cooke,  Hopk.  226 ;  Ramsay  v.  Ramsay,  20  Wis.  507. 

5  Kettletas  v.  Gardner,  1  Paige  Ch.  488. 

6  Barnes  v.  Powers,  12  Ind.  341 ;  Sweet  v.  Sweet,  Speers  Eq.  309 ;  0 'Neil's 
Case,  1  Tuck.  (N.  Y.  Surr.)  34. 

^  Lefever  v.  Lefever,  6  Md.  472.         «  Nicholson's  Appeal,  20  Penn.  St.  50. 

9  Chew's  Estate,  4  Md.  Ch.  60;  Cooper's  Case,  2  Paige  Ch.  34.  See  Lord 
Thurlow,  in  Smith  v.  Bate,  2  Dick.  631.  l"  Stone  v.  Dorrett,  18  Tex.  700. 

11  Morgan  v.  Anderson,  5  Blackf.  503  ;  West  v.  Forsytlie,  34  Ind.  418. 
1-'  E.r  parte  Crutchfield,  3  Yerg.  336. 
"  Windsor  v.  McAtee,  2  Met.  (Ky.)  430. 
»  Slattery  v.  Smiley,  25  Md.  389. 

[  460  ] 


TERMINATION  OF  GUARDIAN'S  AUTHORITY.        *  430 

such  conduct  of  a  guardian  as  tends  to  alienate  his  infant 
ward's  affections  from  the  mother  who  is  a  person  of  good 
character,  will  justify  his  removal,  notwithstanding  the  mother 
may  have  remarried.  ^ 

*  Religious  opinions  were  formerly  made  a  test  of  the  *  431 
guardian's  capacity  to  act.  Such  conflicts  seldom  arise 
at  the  present  day.  It  was  held  in  a  Pennsylvania  case,  a  few 
years  ago,  that  difference  of  belief  on  religious  subjects  con- 
stitutes no  cause  for  a  guardian's  removal,  if  no  harsh  or 
unfair  means  have  been  used  to  erase  the  impressions  left  by 
the  parents  qn  the  child's  mind.^ 

For  the  same  reason  that  non-residents  are  held  incompetent 
for  appointment,  guardians  must  surrender  their  authority 
when  they  move  out  of  the  jurisdiction,  or  the  court  will  take 
it  from  them.  This  rule  is  not  uniform,  however,  in  all  the 
States.  Under  the  statutes  in  Indiana,  Alabama,  and  some 
other  States,  removal  from  the  State  constitutes  per  se  a 
ground  for  displacement  from  office.^  But  since,  as  we  have 
seen,  non-residents  ma}^  sometimes  be  appointed  guardians, 
the  more  reasonable  rule  is  to  make  them  liable  to  displace- 
ment whenever,  as  non-residents,  they  could  not  have  been 
appointed  in  the  first  instance.^ 

As  in  making  appointments,  the  court  is  allowed  a  lilieral 
discretion  over  removals,  and  its  decision  will  not  be  reversed 
on  appeal  unless  palpable  injustice  has  been  done.^  But  the 
guardian  is  entitled  to  notice  before  removal,  that  he  may 
appear  in  defence ;  and,  if  removed  without  such  notice, 
unless  he  has  waived  it  by  his  voluntary  appearance  in  court, 
he  has  good  ground  for  appeal ;  and  it  is  doubtful  whether 
a  new  appointment  under  such  circumstances  has  any  val- 
idity   whatever.^      The    authorities   are    clear   in    requiring 

1  Perkins  v.  Finnegan,  lOo  Mass.  501. 

2  Nicholson's  Appeal,  20  Penn.  St.  50  ;  supra,  p.  417. 

3  Nettleton  v.  State,  13  Ind.  159  ;  Cockrell  v.  Cockrell,  30  Ala.  673. 

*  See  Speight  v.  Knight,  11  Ala.  4G1  ;  also  supra,  p.  419  ;  Succession  of 
Bookter,  18  La.  Ann.  157. 

5  Nicholson's  Appeal,  20  Penn.  St.  50  ;  Isaacs  v.  Taylor,  3  Dana,  600  ;  Young 
V.  Young,  5  Ind.  513. 

8  Hart  V.  Gray,  3  Sumn.  339;  Gwin  v.  Vanzant,  7  Yerg.  143  ;  Myers  v.  Pear- 
soil,  17  Ind.  405 ;  Croft  v.  Terrell,  15  Ala.  652. 

[  461  ] 


*  431  GUARDIAN  AND   TYARD. 

*  432    notice    *  wherever   proceedings   for  removal  involve 

the  guardian's  personal  character  ;  but  where  the  dis- 
charge is  sought  on  other  grounds,  and  the  ward's  rights  are 
deemed  of  paramount  importance,  as  when  one  under  guar- 
dianship for  insanity  is  restored  to  reason,  or  a  ward  arrived 
at  fourteen  wishes  to  exercise  the  privilege  of  nominating  a 
successor,  removals  without  notice  are  sometimes  sustained ;  ^ 
still  the  better  opinion  is  in  favor  of  notice  in  all  cases .^ 

It  is  held  in  Vermont  that  when  a  guardian  who  has  been 
removed  from  office  appeals,  and  in  the  mean  time  another  has 
been  appointed  in  his  place  and  given  bonds,  the  powers  of  the 
old  guardian  cease,  and  the  new  one  takes  control,  until  he  is 
restored.^ 

We  have  seen  that  chancery  courts  in  this  country  claim 
the  right  of  removing  testamentary  guardians.  In  England, 
the  rule  is  not  laid  down  so  strongly.  Testamentary  guar- 
dians are  not  removed  but  superseded  in  their  functions :  a 
refinement  adopted,  it  is  said,  out  of  deference  to  the  act  of 
parliament.^  In  this  sense  are  to  be  understood  certain  ex- 
pressions of  Lord  Hardwicke  and  Lord  Redesdale,  which 
would  seem  to  extend  the  authority  of  the  court  to  actual 
removal  from  office.^  Lord  Nottingham,  in  Foster  v.  Denny ^ 
said  that  he  could  not  remove  a  guardian  constituted  by  act 
of  parliament.'^  This  is  still  the  doctrine  of  the  English 
chancery  ;  but  it  exercises  full  jurisdiction  in  ordering  in- 
fants to  be  made  wards  of  court,  with  suitable  directions  for 
their  maintenance  and  education  ;  and  it  will  restrain  the 
testamentary  guardian  from  interference  with  the  person  and 
estate  of  wards  thus  taken  under  its  protection." 

*  433        *  By  the    common  law,   certain   persons,  as    idiots, 

lunatics,  deaf  and  dumb  persons,  persons  under  out- 

1  Hovey  v.  Harmon,  49  Me.  269  ;  supra,  ch.  2. 

2  Montgomery  v.  Smith,  3  Dana.  599  ;  Copp  v.  Copp,  20  N.  H.  284 ;  Lee  v. 
Ice,  22  Ind.  384.     But  see  Cooke  v.  Beale,  11  Ired.  36. 

3  State  V.  McKown,  21  Vt.  503.  *  Macpliers.  Inf.  128. 

5  Lord  Hardwicke,  in  Roach  r.  Garvan,  1  Ves.  160 ;  Lord  Redesdale,  in 
O'Keefe  v.  Casey,  1  Sch.  &  Lef.  106. 

6  2  Ch.  Cas.  237. 

7  Smith  V.  Bate,  2  Dick.  631  ;  Ingham  v.  Bickerdike,  6  Madd.  275.  See  also 
M'Cullochs,  In  re,  1  Dru.  276  ;  12  Jur.  100. 

[  462  ] 


TERMINATION  OF  GUARDIAN'S  AUTHORITY.         *  433 

lawry  or  attainder,  and  le^^ers  removed  by  writ  of  leprosy, 
were  passed  over  in  the  guardianship.  And  where  a  guar- 
dian became  incapable  of  acting,  the  office  devolved  upon  the « 
next  person  to  whom  the  inheritance  could  not  descend. ^ 
Such  guardians  do  not  ajopear  to  have  been  removed  from 
office.  But  there  can  be  little  doubt  that  the  insanity  of  a  pro- 
bate or  chancery  guardian  would  be  good  cause  for  his  removal 
or  supersedure  ;  and  a  final  settlement  of  his  guardianship  ac- 
counts would  properly  be  required  from  his  own  guardian.^ 

The  marriage  of  a  female  guardian  may  terminate  her 
authority  ;  though  that  of  a  male  guardian  never  does.  The 
old  rule  of  the  common  law  appears  to  have  been,  that  when 
a  female  guardian  in  socage  married,  her  husband  became 
guardian  in  right  of  his  wife  ;  but  that  on  her  death  guar- 
dianship ceased  on  his  part,  and  went  to  the  infant's  next 
relation.3  Testamentary  guardianship  in  England  seems  to 
be  left  to  the  operation  of  the  will  in  such  cases  :  chancery 
refusing  to  interfere  with  the  testator's  own  directions.^  But 
it  is  customary  for  the  father  to  designate  successors  in  the 
event  of  marriage.  What  has  already  been  said  on  the  sub- 
ject of  appointing  married  women  guardians  applies,  likewise, 
in  this  connection.5  Certainly,  if  marriage  does  not  absolutely 
put  an  end  to  the  guardian's  authority,  it  has  the  common- 
law  effect  of  joining  her  husband  in  the  trust ;  and  yet  accord- 
ing to  some  American  statutes  the  fact  of  marriage  would  only 
render  her  liable  to  removal.  In  Louisiana,  the  mother,  by 
the  advice  of  a  family  meeting,  may  be  retained  in  the  tutor- 
ship of  her  minor  children,  notwithstanding  her  remarriage.^ 

There  are  some  other  cases  in  which  it  is  said  that  a  new 
guardian   may   be   appointed,  as   though   guardianship   had 

1  Co.  Litt.  88,  89  ;  Macphers.  Inf.  24,  25. 

'^  ^Modawell  v.  Holmes,  40  Ala.  391. 

3  Co.  Litt.  89  a ;  Bac.  Abr.  Guardian  and  Ward  (E).     See  7  Vt.  872. 

*  Macpliers.  Inf.  129 ;  Morgan  v.  Dillon,  9  Mod.  135  ;  Dillon  v.  Lady  Mount 
Casliell,  4  Bro.  P.  C.  306.     See  Corbet  v.  Tottenham,  1  Ball  &  B.  59. 

5  See  suprn,  p.  418 ;  Martin  v.  Foster,  38  Ala.  688  ;  Elgin's  Case,  1  Tuck. 
(N.  Y.  Surr.)  97 ;  Leavel  v.  Bettis,  3  Bush,  74. 

'  Gaudet  v.  Gaudet,  14  La.  Ann.  112. 

[463] 


*433  GUARDIAN   AND    WARD. 

already  determined.     Thus,  where  a  testamentary  guardian 

has  not  acted,  and  declines  to  act,  chancery  may  appoint  a 

,  successor.^     So  in  other  cases  where  the  guardian  renounces 

his  appointment.^  Filing  a  bond,  with  proper  security, 
*  434    is  *  sometimes  regarded  as  the  condition  precedent  to 

a  probate  appointment,  and  it  is  thought  that  letters 
need  not  be  revoked  in  such  a  case.  But  this  is  by  no  means 
a  settled  rule.^ 

Outlawry  and  attainder  of  treason  —  or  what  is  known  as 
civil  death  —  did  not  put  an  end  to  guardianship  in  socage  ; 
because,  it  was  said  the  guardian  had  nothing  to  his  own  use, 
but  to  the  use  of  the  heir.^  The  same  principle  doubtless 
applies  to  other  guardians.  But  a  guardian  might  be  properly 
removed  on  such  grounds. 

1  Ex  parte  Champney,  1  Dick.  350;  O'Keefe  v.  Casey,  1  Sch.  &  Lef.  106. 

2  McAlister  v.  Olmstead,  1  Humph.  210  ;  Lefever  v.  Lefever,  6  Md.  472. 

3  Russell  V.  Coffin,  8  Pick.  143  ;  Fay  v.  Hurd,  ib.  528 ;  Barns  v.  Branch,  3 
McCord,  19 ;  Clarke  v.  Darnell,  8  Gill  &  Jolms.  111.  See  West  v.  Forsythe,  34 
Ind.  418. 

i  Co.  Litt.  88  b  ;  Macphers.  Inf.  25. 


[4G4] 


NATURE   OF  GUARDIAN'S   OFFICE.  '  *  435 


*  CHAPTER  IV.  *435 

NATURE   OF   THE   GUARDIAN'S   OFFICE. 

The  powers  and  duties  of  a  guardian  relate  either  to  the 
person  of  the  ward,  or  to  the  ward's  estate,  or  to  both  person 
and  estate.  As  guardian  of  the  person,  he  is  entitled  to  the 
custody  of  the  ward  ;  he  is  bound  to  maintain  him  in  a  style 
suitable  to  the  latter's  means  and  condition  in  life ;  if  the 
ward  be  a  minor,  he  superintends  his  education  and  directs  him 
in  the  choice  of  a  pursuit ;  and  in  general,  he  supplies  the 
place  of  a  judicious  parent.  As  guardian  of  the  estate,  he 
manages  the  ward's  property,  both  real  and  personal,  with 
faithfulness  and  care,  changes  investments  whenever  neces- 
sary, with  permission  of  the  court,  pays  the  just  debts  of  the 
ward,  collects  his  dues,  puts  out  his  money  on  interest,  man- 
ages his  investments,  keeps  regular  accounts,  and  is,  in  effect, 
the  ward's  trustee.^  Whether  the  guardianship  be  in  socage, 
testamentary,  or  by  chancery  or  probate  appointment,  these 
powers  and  duties  are  essentially  the  same ;  although,  as  we 
have  seen,  socage  guardianship  was  created  with  special  ref- 
erence to  the  ward's  real  estate.^  Moreover,  as  will  fully 
appear  in  the  succeeding  chapters,  chancery  and  probate  guar- 
dians are  brought  more  closely  under  judicial  control  and 
supervision  than  either  guardians  in  socage  or  testamentary 
guardians. 

But  while  guardianship  of  the  person  resembles  the  relation 
of  parent  and  child,  it  is  not  altogether  like  it.  The  parent 
must  support  his  child  from  his  own  means ;  and  in  return 
the  child's  labor  and  services  belono-  to  him.  But  the  ffuar- 
dian  is  not  bound  to  supply  the  wants  of  his  ward,  ex- 
cept from  *  the  ward's  own  estate  in  his  hands  and  the  *  436 
liberality  of  others,  though  it  were  to  keep  the  child 

1  2  Kent  Com.  230-233.  2  Supra,  cli.  1. 

30  [  465  ] 


*  -iSe  GUARDIAN   AND   WARD. 

from  starving.  On  the  other  hand,  the  guardian  has  no  more 
right  to  the  labor  and  services  of  his  ward  than  any  stranger. 
Nor  are  guardians  of  the  estate  vested  with  an  interest  pre- 
cisely like  that  of  trustees  ;  for  while  the  latter  may  sue  and 
be  sued  in  their  official  capacity,  suits  by  and  against  infants 
are  brought  in  the  name  of  the  ward  and  not  the  guardian. ^ 

Guardians  in  socage  acquired  authority  as  guardians  of  the 
ward's  estate ;  and  guardianship  of  the  estate  drew  after  it, 
in  such  case,  guardianship  of  the  person ;  so  that  they  were 
guardians  of  both  person  and  estate .^  Testamentary  guar- 
dians under  the  statute  of  Charles  II.  acquire  authority 
through  the  father's  devise  to  them,  of  the  "  custody  and  tu- 
ition" of  his  children;  and  this  devise  of  the  person  carries 
with  it  as  incident  a  devise  of  the  estate  ;  so  that  they  too 
(subject  to  statute  modifications)  are  guardians  of  both  per- 
son and  estate.^  But  chancery  guardians  are  not  always  in- 
vested with  such  powers;  for  the  court  will  make  such  orders 
as  are  needful  in  all  cases.  Chancery  sometimes  appoints  a 
guardian  of  the  person  only,  for  a  special  and  temporary  pur- 
i^ose.*  Where  a  suit  is  pending,  and  it  becomes  necessary  to 
appoint  a  guardian,  chancery  appoints  a  guardian  of  the  per- 
son only,  the  estate  being  under  the  direction  of  the  court. 
But  where  no  suit  is  pending,  and  proceedings  are  commenced 
by  petition,  the  guardian  is  appointed  for  both  person  and  es- 
tate.°  Probate  guardianship  is  subject,  in  great  part,  to  local 
legislation  ;  but  it  may  be  safely  asserted,  as  a  general  prin- 
ciple, that  all  probate  guardians  are  guardians  of  both  person 
and  estate,  and  that  the  court  cannot  commit  guardianship 
of  the  person  to  one  and  guardianship  of  the  property  to 
another.^ 

*  437        *  The  guardian  is  not  always  entitled  to  the  custody 

of  the  infant's  person ;  but  chancery  will  exercise  its 
discretion  for  the  benefit  of  the  latter,  as  to  delivering  him 
up  to  the  guardian  or  permitting  him  to  remain  elsewhere, 

1  See  infra,  pp.  592-598. 

-  But  see  Bedell  v.  Constable,  Vaugh.  185,  cited  supra. 

3  Stat.  12  Car.  2,  e.  24,  §§  8,  9;  Vaugh.  178. 

4  Macpliers.  Inf.  114;  Ex  parte  Becher,  1  Bro.  C.  C.  556;  Ex  parte  Wcols- 
combe,  1  Madd.  213.  5  Macphers.  Inf.  105;  2  Kent  Com.  229. 

6  See  Tenbrook  v.  M'Colm,  7  Halst.  97. 

[466  ] 


NATURE   OF  GUARDIAN'S   OFFICE.  *437 

and  as  to  the  persons  who  are  to  have  access  to  him,  and  the 
circumstances  attending  such  access,  and  generally  as  to  his 
education.^  And  it  is  the  policy  of  our  legislation  to  leave 
the  child's  person  in  his  parents'  keeping  so  far  as  possible. 
But  the  guardian  may  be  a  "guardian  of  the  person  and 
estate  "  notwithstanding. 

In  discussing  the  rights  and  duties  of  a  guardian,  this  ques- 
tion next  meets  us  at  the  outset :  Is  or  is  not  the  guardian's 
office  substantially  that  of  a  trustee  in  interest  ?  This  will 
be  Ijest  seen  by  examining  the  different  kinds  of  guardians, 
as  they  respectively  arose. 

Guardianship  in  socage  arose  very  early  at  common  law, 
and  is  the  first  in  order.  These  guardians  were  considered 
as  trustees.  According  to  the  old  authorities,  the  guardian 
in  socage  had  not  a  bare  authorit}^,  but  an  actual  estate  and 
interest  in  the  land,  though  not  to  his  own  use.^  Hence  he 
might  elect  whether  to  let  the  estate  or  occupy  it  for  the 
ward's  benefit.  He  was  considered  as  entitled  to  the  posses- 
sion of  the  ward's  property,  and  incapable  of  being  removed 
from  it  by  any  person.  In  other  words,  this  guardian  had 
the  legal,  but  not  the  beneficial,  interest. 

Not  long  after  the  statute  of  Charles  II.  chancery  was 
called  upon  to  determine  the  nature  of  testamentary  guar- 
dianship. Lord  Macclesfield,  in  the  case  of  I)uke  of  Beaufort 
V.  Berty^  stated  that  testamentary  guardians  were  but  trus- 
tees ;  that  the  statute  merely  empowered  the  father  to  appoint 
a  different  person  as  guardian  and  to  continue  the  relation 
beyond  the  age  of  fourteen  and  until  the  ward  became 
twenty-one  ;  and  that  both  socage  and  testamentary  guar- 
dians were  equally  trustees.  And  in  the  important  case 
of  Eyre  v.  Countess  of  Shaftesbury,^  *  this  principle,  *  438 
though  with  another  admitted  difference  as  to  succes- 
sion, was  again  affirmed.  This  general  rule  has  received  judi- 
cial sanction  in  England  quite  recently .° 

1  Macphers.  Inf.  119 ;  Anon.,  2  Ves.  Sen.  374. 

2  Co.  Litt.  00  a  ;  Plowd.  ch.  23.     See  next  chapter. 

3  1  P.  Wms.  703.  *  2  P.  Wnis.  102. 
5  Gilbert  v.  Schwenck,  14  M.  &  W.  488 ;  s.  c.  9  Jur.  693. 

[467] 


*  438  GUARDIAN  AND  WARD. 

Chancery  guardianship,  of  still  later  origin,  resembles  in 
its  nature  testamentary  guardianship.  The  same  principles 
are  constantly  asserted  in  regard  to  both.  In  either  case,  the 
guardian  has  a  vested  interest  in  his  ward's  estate,  may  bring 
actions  relative  thereto,  and  make  leases  during  the  minority 
of  the  infant.  He  has  in  all  respects  the  dominion  pro  tem- 
pore of  the  infant's  estate  and  possesses  more  than  a  naked 
authority.  ^ 

The  same  may  be  said  of  probate  guardianship  in  this 
country,  which,  under  statute  modification,  has  become,  if 
any  thing,  more  like  trusteeship  than  the  other  kinds.^  And 
in  Thompson  v.  Boardman  ^  the  analogies  of  the  old  law  have 
been  extended  to  the  case  of  a  spendthrift's  guardian. 

It  is  often  difficult  to  say  what  in  strictness  is  a  trustee, 
since  every  trust  is  limited  by  the  instrument  which  creates 
it.  The  powers  of  a  guardian  differ  greatly  from  those  of  an 
executor  or  administrator.  But  so  far  as  guardianship  of  the 
estate  is  concerned  a  guardian  is  in  fact  a  trustee ;  for  he 
holds  the  legal  estate  to  the  benefit  of  another.  To  apply  the 
term  agent  to  the  guardian's  office  seems  therefore  harsh  and 
unnatural,  whatever  may  be  the  ward's  position.'^ 

Where  there  are  two  or  more  testamentary  guardians,  and 

one  of  them  dies  or  is  removed,  the  survivor  or  survivors 

shall  continue.     The  very  nature  of  the  trust  demands  it.^ 

In  England,  it  is  otherwise  with  joint  guardians  by  chancery 

appointment ;  for  if  one   dies  the  office  determines.^ 

*  439    But  the  survivors  *  will  be  appointed  without  a  refer- 

ence,''' so  that  after  all  the  rule  is  only  formal.  In 
this  country,  the  more  reasonable  doctrine  prevails,  as  to  both 
chancery  and  probate  guardianship,  that  the  survivors  shall 
continue  the  trust,  like  co-executors,  and  on  the  same  princi- 
ple.    This  was  declared  to  be  the  rule  as  to  joint  chancery 

1  People  V.  Byron,  3  Johns.  Cas.  53. 

2  See  Truss  v.  Old,  6  Rand.  556 ;  Isaacs  v.  Taylor,  3  Dana,  600 ;  Alexander 
V.  Alexander,  8  Ala.  796  ;  Pepper  v.  Stone,  10  Vt.  427. 

i  1  Vt.  370. 

*  But  see  dictum  of  Shaw,  C.  J.,  in  Manson  v.  Felton,  13  Pick.  206. 

^  See  Bac  Abr.  Guardian  (A).  "^  Bradshaw  v.  Bradsliaw,  1  Russ.  528. 

•J  Hall  V.  Jones,  2  Sim.  41. 

[468] 


I 


NATURE  OF   GUAEDIAN'S  OFFICE.  *  439 

guardians  in  a  leading  New  York  ease.^  And  a  Vermont 
court  applies  it  likewise  to  probate  guardians.^  The  statutes 
enacted  in  many  of  the  States  remove  all  further  doubt  on 
the  subject. 

Of  two  or  more  persons  appointed  joint  guardians  under  a 
will,  one  may  qualify  without  the  other.^  But  while  a  joint 
guardian  who  had  once  declined  the  trust  has  no  further  right 
to  be  appointed,  he  may  yet  be  selected  in  preference  to 
others  to  fill  a  vacancy.  Thus  it  has  been  held  that  where 
three  testamentary  guardians,  one  of  whom  was  the  mother, 
were  named  by  the  father  in  his  will,  and  the  mother  became 
sole  guardian,  by  the  refusal  of  the  others  to  act  with  her, 
they  were  properly  selected  by  the  court,  after  the  mother's 
death,  on  their  own  application,  in  preference  to  the  person 
nominated  in  her  will.^ 

On  the  principle  that  guardians  are  trustees,  it  is  held  that 
joint  guardians  may  sue  together  on  account  of  any  joint 
transaction  founded  on  their  relation  to  the  ward,  even  after 
the  relation  ceases.^  Also  that  the  receipt  of  one  is  the  re- 
ceipt of  all.^  Also  that  one  can  maintain  trespass  against  the 
other  for  forcibly  removing  the  child  against  his  wishes  ;  as 
one  of  two  joint  trustees  cannot  act  in  defiance  of  the  other." 
And  where  one  guardian  consents  to  his  co-guardian's  misap- 
plication of  funds,  he  is  liable.^  The  fact  that  one  joint 
guardian  is  dead  will  not  prevent  the  co-guardian's  prior 
accounts  from  being  opened  on  a  final  settlement  in 
court.^  Guardians,  like  other  trustees,  —  *  executors  *  440 
and  administrators  excepted,  —  may  portion  out  the 
management  of  the  property  to  suit  their  respective  tastes 
and  qualifications,  while  neither  parts  irrevocably  with  the 

1  People  V.  Byron,  3  .Johns.  Cas.  53. 

■-'  Pepper  v.  Stone,  10  Vt.  427.     See  also  remarks  of  Chancellor  Sanford,  in 
Kirby  v.  Turner,  Hopk.  309,  as  to  the  nature  of  joint  guardianship. 
3  Kevan  v.  Waller,  11  Leigli,  414. 

*  Johnston's  Case,  2  Jones  &  Lat.  222. 

*  Shearman  v.  Akins,  4  Pick.  283. 
6  Alston  V.  Munford,  1  Brock.  266. 

T  Gilbert  i;.  Schwenck,  14  M.  &  W.  488. 

8  Pim  V.  Downing,  11  S.  &  R.  66.     See  Clark's  Appeal,  18  Penn.  St.  175. 

9  Blake  v.  Pegrara,  101  Mass.  592. 

[  469  ] 


*  44:0  GUAEDIAN  AND  WAKD. 

control  of  the  whole  ;  and  in  such  case  each  is  chargeable 
with  no  more  than  what  he  received,  unless  unwarrantable 
negligence  in  superintending  the  other's  acts  can  be  shown.^ 
And  the  discharge  of  one  who  has  received  no  part  of  the 
estate  relieves  him  from  liability .^  On  the  other  hand,  it  is 
presumed  that  the  survivor  of  joint  guardians  received  the 
whole  estate  in  absence  of  proof  to  the  contrary.^ 

In  English  practice,  the  Court  of  Chancery  holds  the  ward's 
property  within  its  grasp  with  a  tightness  unknown  to  Amer- 
ican tribunals.  The  regular  course  is  to  get  in  all  the  money 
due  the  infant,  and  to  invest  it  in  the  public  funds.  A  re- 
ceiver is,  if  necessary,  appointed  to  facilitate  collections,  and 
generally  the  same  person  is  made  a  permanent  receiver  of 
the  ward's  real  estate,  to  collect  all  rents.  Where  there  is  an 
executor  he  will  not  be  interfered  with,  except  under  strong 
circumstances  of  suspicion,  but  an  administrator  is  treated 
with  less  consideration .4  Even  executors  who  are  also  testa- 
mentary guardians,  must  bring  their  funds  into  court  after 
settling  up  the  estate  of  their  testator.^  Chancery,  thus  man- 
aging actively  the  ward's  property,  makes  its  own  scheme  for 
maintenance,  and  allows  the  guardian  a  certain  fixed  income 
accordingly.^ 

Probate  guardianship  in  this  country  is  quite  different. 
Schemes  of  maintenance  are  seldom  heard  of.  Nor  are  re- 
ceivers appointed.  The  guardian  usually  collects  his  ward's 
dues,  whether  from  the  executor  of  the  parent  or  others,  and 
manages  the  property  on  liis  own  responsibility,  with  little 
judicial  interference.  He  regulates  at  discretion  the 
*  441  sum  *  proper  for  annual  expenditure,  and  changes  the 
rate  when  expedient.  Of  course,  he  is  held  account- 
able, on  legal  principles,  much  the  same  as  those  of  the 
English  chancery;  but  he  seldom  applies  to  the  court  for  direc- 
tions, unless  some  perplexity  arises,  or  it  becomes  expedient 

1  Jones's  Appeal,  8  Watts  &  S.  143. 

a  Hocker  v.  Woods,  33  Penn.  St.  466. 

3  Graham  v.  Davidson,  2  Dev.  &  Bat.  Eq.  155. 

*  Macpliers.  Inf.  268,  and  cases  cited. 

5  lb.  118 ;  Blake  v.  Blake,  2  Sch.  &  Lef.  26. 

^  Macphers.  Inf.  213  et  seq. 

[470] 


NATURE  OF  GUARDIAN'S   OFFICE.  *  4J:1 

to  sell  real  estate,  or  when  the  ward  cannot  be  supported 
without  breaking  in  upon  the  principal  fund. 

The  same  person  is  frequently  executor  under  the  parent's 
will,  and  also  guardian  of  the  minor  children.  Hence  the 
question  will  sometimes  arise  whether  he  holds  the  fund  in 
the  one  or  the  other  capacity.  It  is  clear  that  where  one  is 
both  guardian  and  executor,  he  cannot  be  sued  in  both  capac- 
ities, nor  are  both  sets  of  sureties  liable.^  He  is  in  the  first 
instance  liable  as  executor  ;  and  in  general,  to  render  him 
Hable  as  guardian,  there  should  be  some  distinct  act  of  trans- 
fer. His  plain  duty  is  to  keep  the  trusts  distinct  and  not 
blend  them.  In  the  former  case,  his  accounts  rendered  will 
show  the  transfer  of  the  legacy  or  distributive  share  from  his 
account  as  executor  to  his  account  as  guardian  ;  and  thereby 
his  liability  as  guardian  will  become  fixed.^  But  in  the  latter 
case,  or  if  no  clear  evidence  appears  elsewhere  of  an  actual 
transfer,  can  it  be  presumed?  The  better  opinion  is  that, 
after  the  time  limited  by  law  for  the  settlement  of  the  estate 
has  elapsed,  and  there  is  no  evidence  of  intent  to  hold  longer 
as  executor,  he  shall  be  presumed  a  guardian ;  on  the  princi- 
ple that  what  the  law  enjoins  upon  him  to  do  shall  be  con- 
sidered as  done.^  And  certainly  very  slight  evidence  would 
confirm  any  possible  doubt ;  such  as  the  division  of  the 
parent's  estate  among  other  heirs,  the  payment  of  legacies,  or 
where  he  has  placed  some  of  the  chattels  on  the  ward's 
farm.^  But  the  rule  may  be  otherwise  *  with  joint  *  442 
executors  ;  ^  and  we  need  hardiy  add,  that  this  doctrine 
applies  in  strictness  only  to  personal  assets  which  pass  through 
administration  ;  since  real  estate,  ordinarih%  goes  at  once  to 
the  heir.     Acts,  too,  inconsistent  with  the  purpose  of  holding 

•  Wren  v.  Gaydcn,  1  How.  (Miss.)  3G5. 

2  Alston  V.  Munford,  1  Brock.  266  ;  Burton  v.  Tunnell,  4  ?Iarring.  (Del.)  424 ; 
contra,  Conkey  v.  Dickinson,  13  Met.  51  ;  Stillman  v.  Young,  16  111.  318;  Fo- 
teaux  V.  Lepage,  6  Clarke  (Iowa),  123 ;  Scott's  Case,  36  Vt.  297. 

3  Watkins  v.  State,  4  Gill  &  Johns.  220  ;  Karr  v.  Karr,  6  Dana,  3  ;  Crosby  v. 
Crosby,  1  S.  C.  n.  s.  337 ;  Wilson  v.  Wilson,  17  Ohio  St.  150  ;  Townsend  v.  Tal- 
lant,  33  Cal.  45. 

■»  Johnson  v.  Johnson,  2  Hill  Ch.  277;  Drane  v.  Bayliss,  1  Humph.  174. 
5  Watkins  v.  State,  4  Gill  &  Johns.  220. 

[471 


*  442  GUARDIAN  AND  WARD. 

as  guardian,  and  consistent  with  that  of  continuing  adminis- 
trator or  executor,  should  not  readily  be  construed  to  a  ward's 
prejudice  ;  but  rather,  if  need  be,  serve  to  repel  the  presump- 
tion of  guardianship. 

If  a  legacy  is  given  under  a  will  to  an  infant,  which  he  is 
not  to- receive  unless  he  attain  full  age,  it  would  appear  that 
the  simpler  course  is  for  the  executor  to  retain  the  fund  dur- 
ing the  infant's  minority  ;  yet  it  is  held  that  a  probate  guar- 
dian may,  at  the  court's  discretion,  be  appmnted  to  receive 
the  fund  and  hold  it  subject  to  the  restriction  contained  in 
the  will.i 

A  guardian  cannot  blend  distinct  trusts  of  guardianship  by 
appointment.  Thus  where  a  person  was  appointed  guardian 
of  an  infant  who  became  insane  shortly  before  reaching  his 
majority,  and  the  same  guardian  continued  to  act,  styling 
himself  guardian  of  "  A.  B.,  an  idiot,"  it  was  held  that  his 
trust  properly  expired  with  the  infancy  of  the  minor.^  Nor 
does  it  matter  that  the  probate  court  recognizes  a  continua- 
tion of  the  trust  by  passing  his  accounts  ;  for  an  actual  ap- 
pointment, after  the  regular  form,  is  always  essential  to  a 
guardian's  authority. 

"Where  the  person  designated  as  executor  of  a  will  is  under 
age  it  becomes  necessary  to  appoint  an  administrator  during 
minority,  which  appointment  was  at  common  law  denominated 
durante  minore  cetate.^  So  when  the  next  of  kin  is  under  age, 
the  English  practice  in  such  cases  is  to  appoint  the  infant's 
guardian,  unless  there  be  some  other  next  of  kin  competent  to 
act ;  though  the  rule  is  not  invariable.*  And  in  the  English 
case  of  John  v.  Bradhury^  decided  as  late  as  1866,  it  is  affirmed 
that  the  guardian  of  an  infant  sole  next  of  kin  shall  not  only 
administer  in  preference  to  creditors,  but  shall  be  exempted 
from  security,  except  in  very  strong  cases,  notwithstanding 
the  creditors  request  it.^  So  he  is  preferred  to  the  husband 
of  a  married  woman  who  died  after  a  judicial  separation.^ 

1  Gunther  v.  State,  31  Md.  21.  2  Coon  v.  Cook,  6  Ind.  268. 

3  1  Wms.  Ex'rs,  419,  420  ;  2  Redf.  "Wills,  92,  93.  *  lb. 

5  John  V.  Bradbury,  L.  R.  1  P.  &  D.  245. 

«  Goods  of  Stephenson,  L.  R.  1  P.  &  D.  287.  But  the  husband  usually  ad- 
mmisters.     See  supra,  p.  158. 

[472] 


NATURE   OF   GUARDIAN'S   OFFICE.  *  442 

But  in  this  country,  while  there  are  statutes  in  some  States 
favoring  similar  doctrines,  in  others  the  court  has  full  discre- 
tion in  selecting  a  sulistitute  for  the  child. ^     vSuch  ad- 
ministrator has  for  the  time  *  being  all  the  powers  of   *  443 
a  general  administrator,  but  his  term  of  office  is  re- 
stricted to  the  infant's  minority.^ 

A  quasi  guardianship  often  arises  at  law  where  there  has 
been  no  regular  appointment.  The  general  principle  thus 
recognized  is  that  any  person  who  takes  possession  of  an  in- 
fant's property  takes  it  in  trust  for  the  infant.  Hence  courts 
of  equity  will  always  protect  the  helpless  in  such  cases  by 
holding  the  person  who  acts  as  guardian  strictly  accountable. 
The  ^father  may  thus  be  a  quasi  guardian. ^  So  may  a  step- 
father.^ Or  one  whose  appointment  as  guardian  was  irregu- 
lar or  nuU.^  But  not  an  executor  or  administrator  in  rightful 
possession  of  the  infant's  property  ;  for  he  holds  in  a  different 
capacity.''  Chancery  has  full  jurisdiction  over  the  transactions 
of  all  persons  standing  m  loco  jjarentisJ 

On  the  same  principle,  one  regularly  appointed  guardian  of 
an  infant  is  held  responsible  for  acts  committed  before  quali- 
fying as  such  b}^  giving  bonds.^  And  although  his  authority 
ceases  when  the  ward  attains  majority,  he  continues  person- 
ally responsible  so  long  as  his  possession  and  control  of  the 
property  continues.^ 

The  guardian's  authority  is  limited  to  the  jurisdiction  which 
appoints  him,  and  does  not  extent  to  foreign  countries,  unless 
permitted  by  foreign  laAvs.    Every  nation  is  sovereign  within 
its  own  borders,  but  powerless  beyond  them.     The  rights  of  • 
foreign  guardians  have  been  to  some  extent  admitted,  however, 

1  1  Wms.  Ex'rs,  419 ;  2  Redf.  Wills,  94,  and  cases  cited  ;  Mass.  Gen.  Stats. 
c.  94. 

2  I  "Wms.  Ex'rs,  428,  and  notes  ;  2  Redf.  Wills,  94,  95. 

3  Pennington  v.  Fowler,  3  Halst.  Ch.  343  ;  Alston  v.  Alston,  34  Ala.  15. 
*  Espay  V.  Luke,  15  E.  L.  &  Eq.  579. 

5  Crooks  I).  Turpin,  1  B.  Monr.  185  ;  Earle  v.  Crum,  42  Miss.  165. 

6  Bibb  V.  McKinley,  9  Port.  636;  Minfee  v.  Ball,  2  Eng.  520. 

7  Espay  V.  Luke,  15  E.  L.  &  Eq.  579. 

8  Magruder  v.  Darnall,  6  Gill,  269. 

9  Mellish  V.  Mellish,  1  Sim.  &  Stu.  138  ;  Armstrong  v.  Walkup,  12  Gratt.  608. 

[478  J 


*  443  GUARDIAN  AND   WARD. 

on  the  principle  of  comity.^     These  rights  may  be  considered, 
firsts  as  to  the  person  of  the  ward  ;  second,  as  to  his  estate. 

First,  as  to  the  ward's  person.     Many  writers  on 

*  444    public  law  *  claim  that  the  guardian's  authority  ex- 

tends everywhere.  Others  again  deny  that  it  extends 
beyond  the  jurisdiction  which  appoints.^  In  England,  the 
paternal  authority  is  recognized,  even  in  aliens  ;  but  if  an 
infant  has  a  guardian  appointed  by  any  other  authority  out 
of  the  jurisdiction,  the  appointment  fails  as  soon  as  the  infant 
comes  to  England,  and  the  Court  of  Chancery  will  thereupon 
appoint  a  guardian  on  petition.^  But  in  a  very  recent  case 
liberal  favor  was  shown  toward  the  foreign  guardian  of  wards 
domiciled  abroad.  He  had  sent  them  to  England  to  be  educated, 
and  wished  to  remove  them  to  their  own  country  in  order  to 
complete  their  education.  The  court  refused  to  interfere  with 
their  removal,  and  allowed  the  exclusive  custody  to  the  foreign 
guardian  ;  at  the  same  time,  however,  refusing  to  discharge  an 
order  appointing  English  guardians."^ 

In  this  country,  the  rights  and  powers  of  guardians  over  the 
ward's  person  are  considered  strictly  local,  even  as  between 
different  States,^  though  the  paternal  riglit  would  probably  be 
recognized  as  in  England.^  But  in  Massachusetts,  a  few  years 
ago,  the  custody  of  a  child  was  awarded  to  a  foreign  guardian, 
in  preference  to  one  appointed  within  the  jurisdiction,  the 
court  observmg  that  while  the  former  had  no  absolute  right 
to  the  child,  his  office  would  be  deemed  an  important  element 
in  determining  to  whom  custody  should  be  given.''' 

Second,  as  to  the  ward's  property.  A  distinction  has  been 
made  between  movables  and  immovables.     As  to  immovable 

*  property,  such  as  real  estate,  it  is  almost  universally  admitted 
that  the  law  rei  sitce  shall  govern.^     But  writers  do  not  agree 

1  See  story  Confl.  Laws,  §§  492-529. 

2  See  Story  Confl.  Laws,  §§  495-497,  and  authorities  cited. 

3  Macphers.  Inf.  577  ;  Ex  parte  Watkins,  2  Ves.  470. 

4  Nugent  V.  Vetzera,  L.  R.  2  Eq.  704.     See  27  E.  L.  &  Eq.  451. 

5  Story  Confl  Laws,  §  499;  Morrell  v.  Dickey,  1  Johns.  Ch.  153;  Kraft  v. 
Wickey,  4  Gill  &  Johns.  332;  Burnet  v.  Burnet,  12  B.  Monr.  328;  Boyd  v. 
Glass,  34  Geo.  253  ;  Whart.  Confl.  Laws,  §§  2(31-264. 

^  See  Townsend  v.  Kendall,  4  Min.  412. 

7  Woodworth  v.  Spring,  4  Allen,  321. 

8  Story  Confl.  Laws,  §§  500-502. 

[474] 


NATURE   OF   GUARDIAN'S   OFFICE.  *  444 

as  to  movable  property,  such  as  goods  and  personal  chattels, 
whether  the  laAV  of  the  domicile  shall  prevail  over  that 
of  the  *  situation.  Judge  Story  considered  the  weight  *  445 
of  foreign  authority  in  this  respect,  in  favor  of  admit- 
ting the  guardian's  rights  to  prevail  everywhere  to  the  same 
extent  as  they  are  acknowledged  by  the  law  of  the  domicile.^ 
And  this  seems  to  be  the  Scotch  doctrine. ^  But  according  to 
the  doctrine  of  the  common  law,  now  fully  established  both 
in  England  and  America,  the  rights  of  a  guardian  over  all 
property  whatsoever  are  strictly  territorial,  and  are  recognized 
as  having  no  influence  upon  such  property  in  other  countries 
where  different  systems  of  jurisprudence  are  established.  No 
foreign  guardian  can,  by  virtue  of  his  office,  exercise  his  func- 
tions in  another  country  or  State,  without  taking  out  other 
letters  of  guardianship  or  otherwise  conforming  to  the  local 
law.     Such  is  the  rule  in  both  countries.^ 

But  the  rigor  of  this  rule  is  sometimes  abated.  In  England, 
personal  property  will,  under  certain  circumstances,  be  j^aid 
to  an  owner  who,  if  domiciled  and  resident  in  that  country, 
would  not  be  allowed  to  receive  it.*  So  administration  durante 
minore  estate  has  been  granted  to  a  foreign  guardian.^  In  this 
country,  there  are  local  statutes  which  permit  non-resident 
guardians  to  sue  on  compliance  with  certain  formalities,  or 
even  without  them.''  But  otherwise  they  cannot  bring  actions 
of  any  sort."  And  this  seems  to  be  the  English  rule  likewise.^ 
Nor  will  the  courts  of  one  State  enforce  the  obligation  of  a 
probate  guardian's  official  bond  with  sureties  given  in  another 
State.^    But  a  court  having  general  chancery  jurisdiction  over 

1  Story  Confl.  Laws,  §  500 ;  Schouler  Pers  Prop.  347-385 ;  Wharton  Confl. 
Laws,  §§  2G5,  2G6. 

2  Story,  ib.  §  503  ;  Fra.ser  Parent  &  Cliild,  604.         3  Story  Confl.  Laws,  §  504. 
i  Macphers.  Inf.  577  ;  Goods  of  Countess  Da  Cunlia,  1  Hag.  237. 

5  Goods  of  Sartoris,  1  Curteis,  910. 

e  Exjmrtp.  Heard,  2  Hill  Ch.  54;  Hines  v.  State,  10  S.  &  M.  529;  Sims  v. 
Renwick,  25  Geo.  58  ;  Grist  v.  Forehand,  30  Miss.  69  ;  Martin  v.  McDonald,  14 
B.  Monr.  544 ;  Carlisle  v.  Tuttle,  30  Ala.  613  ;  AVarren  v.  Hofer,  13  Ind.  167. 

"i  Morrell  v.  Dickey,  1  Johns.  Ch.  153 ;  Kraft  v.  Wickey,  4  Gill  &  Johns.  322 ; 
Rogers  v.  McLean,  31  Barb.  304.  This  is  the  rule  too  in  Louisiana.  Succession 
of  Shaw,  18  La.  Ann.  265 ;  Succession  of  Stephens,  19  La.  Ann.  499. 

8  Story  considers  it  doubtful.  Beattie  v.  Johnston,  1  Phillips  Ch.  17 ;  10  CI. 
&  Fin.  42 ;  contra,  Morrison's  Case,  cited  in  4  T.  R.  140,  and  1  H.  Bl.  677,  682. 

»  Probate  Court  v.  Hibbard,  44  Vt.  697. 

[  475  j 


*  445  GUARDIAN  AND   WARD. 

matters  of  guardianship,  may,  it  appears,  in  the  exercise  of 
sound  discretion,  and  upon  principles  of  comity,  equity,  and 
justice,  order  assets  of  the  ward  in  the  possession  of  a  guardian 
resident  within  its  jurisdiction  to  be  delivered  to  the  guardian 
abroad.^  While  courts  of  equity  will  permit  property  to  pass 
to  the  foreign  guardian,  in  pursuance  of  law,  it  seems 

*  446    that  they  will  generally  exercise  *  discretion,  and  in 

some  cases  require  good  security ,2  in  others,  direct  the 
payment  of  a  regular  allowance,'^  and  in  others,  refuse  pay- 
ment altogether  ;^  the  welfare  of  the  infant  being  always  con- 
sidered in  such  cases. 

The  principles  applicable  to  non-resident  guardians  in  this 
country  appear  in  many  respects  similar  to  those  in  case  of 
foreign  executors  and  administrators,  and  the  rules  we  have 
stated  might  be  subjected  to  modification  by  the  mutual 
treaty  stipulations  of  two  independent  governments.^ 

As  each  legislature  in  this  country  derives  its  authorit}-  from 
a  written  constitution,  questions  sometimes  arise  in  our  courts 
as  to  the  validity  of  certain  statutes,  which  in  Great  Britain 
are  of  no  importance,  since  there  an  act  of  Parliament  is  the 
supreme  law.  Thus  it  is  not  uncommon  for  our  legislatures 
to  authorize  or  confirm  the  sale  of  lands  held  by  guardians 
and  other  trustees,  by  special  statutes  ;  and  such  statutes  have 
been  attacked  either  as  an  interference  with  the  property  rights 
of  infants  and  their  heirs,  or  as  an  usurpation  of  judicial  func- 
tions.^ Such  acts  are,  however,  constitutional,  according  to 
the  best  authorities.''  But  in  a  New  Jersey  case,  it  was  inti- 
mated by  the  Chancellor  that,  if  fraud  or  sinister  motives  on 

1  Earl  V.  Dresser,  30  Ind.  11. 

2  Case  of  Andrews'  Heirs,  3  Humph.  592 ;  Martin  v.  McDonald,  14  B.  Monr. 
544. 

•*  McNeely  v.  Jamison,  2  Jones  Eq.  186.  And  see  Ex  parte  Dawson,  3  Bradf. 
130 ;  M'Liskey  v.  Reid,  4  Bradf.  334. 

4  See  2  Story  Eq.  Juris.  §  1354  b ;  Stephens  v.  James,  1  M.  &  K.  627. 

5  Commonwealth  v.  Rhoads,  37  Penn.  St.  60.  And  see  Pratt  v.  Wright,  13 
Gratt.  175. 

^  See  Davison  v.  Johonnot,  7  Met.  388,  for  a  full  discussion  of  the  question. 

7  Clarke  v.  Van  Surlay,  15  Wend.  436;  Cochran  v.  Van  Surlay,  20  Wend. 
365;  Davison  v.  Johonnot,  7  Met.  388;  Snowhill  v.  Snowhill,  2  Green  Ch.  20; 
contra,  Opinion  of  Justices,  cited  in  4  N.  H.  572;  Jones  v.  Perry,  10  Yerg.  59. 

[  ^  '  (^^  ] 


NATURE   OF  GUARDIAN'S   OFFICE.  *  446 

the  guardian's  part  were  shown,  the  special  act  might  be  judi- 
cially avoided.^  It  is  held  that  the  legislature  may  enable  a 
foreign  guardian  to  sell  lands  within  the  State.^  So  a  general 
law  may  be  enacted  for  enabling  guardians  and  other  trustees 
to  enter  into  agreements  as  to  the  disposition  of  property  held 
by  them,  consistently  with  constitutional  provisions 
which  protect  *  the  rights  of  individuals ;  notwith-  *  447 
standing  the  rights  of  persons  remotely  interested  in 
the  estate,  who  are  either  not  in  existence  or  only  contin- 
gently concerned,  may  be  thereby  compromised  without 
their  assent.-^ 


1  Snowhill  V.  Snowhill,  2  Green  Ch.  20. 

2  Boon  V.  Bovvers,  30  Miss.  246  ;  Nelson  v.  Lee,  10  B.  Monr.  495. 

3  Clarke  v.  Cordis,  4  Allen,  466.  See  further.  Ex  parte  Atkinson,  40  Miss, 
17,  to  the  effect  that  untler  the  former  constitution  of  that  State  no  probate 
guardian  could  be  appointed  over  a  child  whose  father  was  living. 


[477] 


*  448  GUARDIAN   AND   WARD. 


*448  *  CHAPTER  V. 

RIGHTS   AND    DUTIES   OF   GUARDIANS    CONCERNING   THE    WARD's 

PERSON. 

As  tlie  guardian  of  a  minor  stands  in  the  place  of  a  parent, 
his  rights  and  duties,  so  far  as  concerns  the  person  of  his 
ward,  are  in  general  those  of  a  parent.  His  rights  relate 
chiefly  to  the  ward's  personal  custody.  His  duties  are  those 
of  protection,  education,  and  maintenance.  These  rights  and 
duties  will  be  considered  at  length  in  the  present  chapter. 

Guardianship,  generally,  carries  with  it  the  custody  of  the 
ward's  person.  This  is  especially  true  where  the  ward's  par- 
ents are  both  dead  or  incompetent  to  act.  Some  one  must 
then  exercise  the  right  of  custody  ;  and  who  is  more  suitable 
than  the  officer  invested  by  law  with  the  responsibility  of 
paying  for  the  child's  education  and  maintenance  ?  Hence 
the  guardian's  title  is,  in  this  respect,  higher  than  that  of 
relatives  and  friends ;  and  he  may  insist  upon  taking  the  child 
from  the  control  of  a  step-mother  or  grandmother,  or  from  any 
person  to  whom  the  father  has  informally  committed  the  care.^ 
For  such  considerations,  however  material  in  determining  the 
selection  of  a  guardian,  become  superseded  by  the  actual 
appointment.  And  it  has  been  said  that  the  decision  of  the 
court  as  to  the  guardian's  appointment  is  a  final  decision  as  to 
the  care  and  custody  of  the  ward.^ 

But  the  custody  of  infants,  as  we  have  seen,  is  a  subject 

within  the  free  discretion  of  courts  of  equity ;  and  where 

the  interests  of  the  ward  require  it,  the  care  of  his 

*  449    person    will   be    *  committed    to    others.^      Chancery 

1  Coltman  v.  Hall,  31  Me.  19G  ;  Bounell  v.  Berryliill,  2  Cart.  613. 

2  Senseman's  Appeal,  21  Penn.  St.  331. 

3  Roach  V.  Garvan,  1  Ves.  160;  Macpliers.  Inf.  119  ;  Story  Eq.  Juris.  §  1341 ; 
Ward  V.  Roper,  7  Humph.  111. 

[  478  ] 


EIGHTS   AND   DUTIES   OF   GUARDIANS.  *  449 

jurisdiction  applies  in  this  respect  to  testamentary  and  chan- 
cery guardianship.  The  good  of  the  chikl  is  superior  to  all 
other  considerations.  Of  this  the  court  will  judge  in  each 
case  by  the  circumstances,  and  make  orders  accordingly,  both 
as  to  actual  custody  and  as  to  the  persons  who  may  have  ac- 
cess to  the  child.  In  determining  where  the  infant  shall  re- 
side, the  infant's  inclination  will  have  considerable  weight,  if 
he  be  of  sufficient  age ;  but  not,  it  would  appear,  during  the 
period  of  nurture.^ 

The  right  of  chancery  courts  to  regulate  the  personal  cus- 
tody of  infants  subject  to  probate  guardianship  has  also  been 
asserted  in  this  country.  This  principle  determined  the  de- 
cision of  the  court  in  the  New  York  case  of  People  v.  Wilcox? 
Here  it  appeared  that  the  parents  had  separated,  the  father 
being  a  man  of  intemperate  habits.  The  child,  by  the  father's 
permission,  was  subsequently  brought  up  at  the  house  of  his 
paternal  grandparents.  Upon  the  father's  death,  the  grand- 
parents secured  letters  of  guardianship,  without  notice  to  the 
mother,  who  was  resident  elsewhere.  She  afterwards  came 
forward  and  claimed  control  of  her  child,  then  only  nine  years 
old.  It  appeared  that  the  child  was  happy  and  well  provided 
for  at  the  home  of  his  grand^Darents.  But  it  also  appeared 
that  the  mother  was  a  person  of  good  character,  and  that  no 
sufficient  reason  existed  for  depriving  her  of  her  natural 
offspring.  The  child  was  therefore  taken  from  the  legal 
guardian  and  his  custody  awarded  to  the  mother. 

But  whatever  might  have  been  the  language  of  the  court 
in  this  case,  it  is  apparent  that  the  circumstances  Avere  of  a 
pecidiar  character.  This  decision  turned  not  merely  upon 
chancery  powers.  It  recognized  the  deeper  principle 
of  natural  law,  that  *  the  relation  of  parent  and  child  *  450 
shall  not  be  roughly  severed.  And  thus  we  find  pro- 
bate guardianship  in  this  country  freciuently  limited  by  posi- 
tive enactment,  so  as  to  reserve  to  the  parents  the  natural 

1  Anon.,  2  Ves.  Sen.  374;  Ilegina  v.  Clark,  40  E.  L.  &  Eq.  109;  People  v. 
Wilcox,  21'  Barb.  178;  Bounell  v.  BerryhiU,  2  Cart.  613;  Kex  v.  Greenliill,  4  Ad. 
&  El.  C42.     See  su])ra.  pp.  333-344,  as  to  custody. 

2  22  Barb.  178. 

[479] 


*  450  GUARDIAN  and"  WARD. 

control  of  their  own  children  and  the  right  to  educate,  when 
alive  and  competent  to  transact  business.^ 

As  to  probate  guardians,  it  is  to  be  added  that  the  more 
natural  course,  so  far  at  least  as  strangers  and  distant  rela- 
tives are  concerned,  is,  in  controversies  like  the  foregoing,  to 
apply  for  the  removal  of  the  guardian  already  appointed,  and 
for  the  appointment  of  another  competent  to  take  actual  con- 
trol of  the  ward's  person. 

The  English  cases  are  numerous  where  the  mother's  claim 
has  been  postponed  to  that  of  the  testamentary  or  chancery 
guardian.2  And  where  the  mother  clandestinely  removes  her 
child,  the  court  has  ordered  him  to  be  delivered  up  to  the 
guardian.^  So  where  she  procures  his  marriage  in  violation 
of  the  statute."^  And  in  a  conflict  between  the  mother  and 
the  infant's  paternal  relatives,  pending  the  appointment  of  a 
chancery  guardian,  the  court  has  given  the  interim  custody 
to  strangers.^  But  the  court  interferes  with  reluctance  as 
against  the  mother,  where  no  misconduct  on  her  part  appears, 
especially  if  the  infant  is  of  tender  years  or  delicate  consti- 
tution, and  requires  maternal  care  and  nourishment.  And 
Lord  Eldon  observed,  in  a  case  where  the  mother's  rights 
came  in  conflict  with  those  of  the  testamentary  guardian, 
that  though  the  effect  of  the  appointment  of  a  guardian  is 
to  commit  the  custody  of  the  guardianship,  the  court  looks 
with  great  anxiety  to  the  execution  of  the  duty  belonging  to 
the  guardian,  and  the  attention  expected  to  be  paid  to  the 
reasonable  wishes  of  the  natural  parent.^  As  our  former 
discussion  of  the  subject  of  parental  custody  may  have  led 
the  reader  to  infer,  the  American  rule  is  not  uniform  in  this 
respect ;  and  as  to  testamentary  and  probate  guardians,  the 
widowed  mother  is  in  some  States  preferred  to  the  guardian, 
while  in  others  the  guardian  is  preferred  "to  the  mother ;  the 


1  See  Smith's  Prob.  Pract.  82,  87  ;  Ramsay  v.  Ramsay,  20  Wis.  507. 
't  See  Macphers.  Inf.  119-121. 
3  Wright  V.  Naylor,  5  Madd.  77. 

*  Eyre  v.  Countess  of  Shaftesbury,  2  P.  Wms.  103 ;  Gilb.  Eq.  172. 
6  In  re  North,  11  Jur.  7.     See  Anderton  v.  Yates,  15  E.  L.  &  Eq.  151. 
6  Earl  of  Ilchester's  Case,  7  Ves.  380. 
[480] 


RIGHTS   AND   DUTIES  OF   GUARDIANS.  *  450 

legislature  frequently  supplying  the  definite  rule    of  guid- 


ance 


Testamentary  guardians  cannot  be  controlled  in  their  rights 
by  expressions  in  other  parts  of  the  will  appointing 
them  which  *  amount  to  a  mere  recommendation.  A  *  451 
case  of  this  sort  came  before  Lord  Chancellor  Cotten- 
ham  in  1847.  The  testator  had  appointed  testamentary 
guardians  over  his  children  in  due  form,  but  had  further 
expressed  the  wish  that  in  case  of  his  wife's  death  during 
their  minority  they  should  be  placed  under  the  care  of  certain 
female  relatives.  The  wife  having  died,  the  female  relatives 
desired  to  assume  full  control.  The  Lord  Chancellor  refused 
to  accede  to  this  extent ;  but,  upon  his  suggestion,  an  ar- 
rangement was  effected,  satisfactory  to  all  parties,  so  as  to 
give  the  immediate  custody  to  the  relatives,  while  preserving 
to  the  testamentary  guardian  that  general  control  and  super- 
intendence which  it  was  his  duty  to  exercise  under  the  will.^ 

Chancery  will  grant  access  in  certain  cases  while  awarding 
the  custody  of  the  infant  to  other  persons.  Not  only  have 
orders  of  access  been  made  in  the  mother's  favor,  but,  after 
her  death,  access  has  been  allowed  to  her  representatives.^ 
And  where  Lord  Hardwicke  appointed  a  grandmother  guar- 
dian in  preference  to  the  father's  executor,  he  ordered  that 
the  latter  should  have  free  access  to  the  infants.'^  So  in  a 
Georgia  case  the  court,  while  confirming  the  guardian's  right 
of  custody,  allowed  access  to  a  near  relative  on  lier  request. ° 

Proceedings  on  a  writ  of  habeas  corpus  may  determine  the 
question  of  legal  custody.  But  a  child  in  the  personal  keep- 
ing of  his  guardian  is  in  legal  custody  ;  nor  can  unlawful 
imprisonment  or  restraint  be  imputed  from  the  guardian's 
refusal  to  surrender  such  child  to  the  parent.^  On  the  other 
hand,  the  court  cannot  entertain  habeas  corpus  to  restore  to 

1  Lord  V.  Hough,  37  Cal.  657  ;  Ramsay  v.  Ramsay,  supra  ;  contra,  Macready 
V.  Wilcox,  33  Conn.  321. 

'^  Knott  V.  Cotter,  2  Ph.  192. 

3  Ord  V.  Blaukett,  9  Mod.  116;  Macpliers.  Inf.  120. 

*  Hunter  v.  Macrae,  17  Oct.  1738,  cited  in  Macphers.  Inf.  121. 

5  Ex  parte  Kalstoii,  1  U.  M.  Cliarlt.  119. 

*>  People  f.  Wilcox,  22  Barb.  178;  Townsend  t'.  Kendall,  4  Min.  412;  In  re 
Andrews,  L.  R.  8  Q.  B.  153. 

31  [  481  ] 


*  45 1  GUARDIAN   AND   WARD. 

the  guardian  a  child  forcibly  removed  by  the  parent,  unless 
the  child  is  actually  restrained  of  liberty.^     Besides  the 

*  452    writ  of  habeas  *  corpus,  there  is  a  remedy  by  petition 

to  the  Court  of  Chancery .^ 

The  question  whether  the  guardian  may  change  the  ward's 
domicile  from  one  country  or  State  to  another,  has  given  rise 
to  much  discussion.  In  England,  it  was  decided  in  the  early 
part  of  this  century  that  the  surviving  parent,  being  also  the 
guardian,  was  competent  to  do  so.'^  The  case  came  before 
Sir  William  Grant,  and  was  argued  by  counsel  with  great 
learning  and  ability.  It  was  here  shown  that  the  best  conti- 
nental jurists  supported  these  views  ;  among  them,  Voet, 
Rodenburgh,  Bynkershoek,  and  Pothier.  This  is  the  leading 
case  on  the  subject,  and  its  authority  has  been  fully  recog- 
nized in  the  United  States.^  The  great  objection  to  a  change 
of  the  infant's  domicile  is  that  the  right  of  succession  to  per- 
sonal property  may  be  thereby  affected  ;  and  it  seems  prob- 
able that,  if  the  change  is  made  with  fraudulent  intent,  to  the 
ward's  injury  or  the  custodian's  private  advantage,  it  will  not 
be  sustained.  Moreover,  as  the  case  above  referred  to  was 
that  of  a  parent,  it  has  been  doubted  whether  a  guardian,  as 
such,  not  being  a  parent,  has  the  right  to  change  his  ward's 
domicile.  In  Pennsylvania,  the  guardian's  authority  has 
been  denied,  and  the  power  confined  to  the  parents.^  But 
Chancellor  Kent  expresses  dissatisfaction  with  such  a  doc- 
trine, and  considers  the  objection  against  the  guardian's 
power  too  refined  and  speculative.^  The  other  American 
authorities  sustain  this  view,  though  in  general  assuming  the 
principle,  rather  than  asserting  it.  The  question  does  not 
seem  to  have  been  raised  in  England.  With  the  facilities  of 
modern  travel  and  the  liberal  intercourse  of  nations  the  ten- 

1  Foster  v.  Alston,  6  How.  (Miss.)  406. 

2  Story  Eq.  Juris.  §  1340,  and  cases  cited ;  and  as  to  custody  in  general, 
supra,  pp.  333-344. 

2  Fotinger  v.  Wightman,  3  Mer.  67.     And  see  preceding  chapter. 
*  Holyoke  v.  Haskins,  5  Pick.  20 ;  2  Kent  Com.  227,  n. 
s  School  Directors  v.  James,  2  Watts  &  Serg.  568 ;  and  see  Story  Confl. 
Laws,  §§  494,  504. 

•>  2  Kent  Com.  227,  n.  (c),  where  this  subject  is  fully  discussed. 

[482] 


RIGHTS   AND  DUTIES   OF   GUARDIANS.  *  452 

dency  increases  in  favor  of  the  guardian's  power  to  change  in 
good  faith  his  ward's  domicile,  even  though  not  en- 
dowed *  with  parental  authority.  This  principle  is  *  453 
readily  admitted,  so  far  as  different  counties  in  the 
same  State  are  concerned.^  And  it  would  be  unwise  for 
American  courts  to  apply,  as  between  States  united  under 
one  general  government,  the  same  rigidly  exclusive  doctrines 
which  foreign  countries  differing  in  religion,  customs,  and 
civil  institutions,  may  see  fit  to  adopt  in  their  intercourse 
with  one  another. 

The  English  Chancery  Court  reluctantly  permits  its  wards 
to  be  carried  out  of  the  jurisdiction.  The  Chancellor  in  De 
Manneville  v.  De  Manneville  restrained  a  father,  himself  an 
alien,  from  removing  his  child  to  a  foreign  country .^  In 
other  cases,  permission  has  been  granted  under  stij)ulations 
for  the  benefit  of  the  child ;  the  guardian  being  required  to 
transmit  regular  returns  to  the  court  with  vouchers,  and  to 
bring  back  the  ward  within  a  specified  time.^  Similar  orders 
in  chancery  have  been  made  in  this  country,  though  rarely.* 
Lord  Chancellor  Cottenham  has  observed,  on  this  subject, 
that  while  circumstances  may  occur,  such  as  the  ill-health  of 
the  ward,  so  as  to  render  his  removal  necessary,  the  general 
rule  ought  to  be  against  permitting  an  infant  ward  to  be 
taken  out  of  the  jurisdiction.  He  further  declared  his  regret 
that  this  rule  had  not  been  more  strictly  adhered  to,  and  his 
conviction  that  a  permanent  residence  abroad  was  injurious 
to  the  future  prospects  of  English  children,  inasmuch  as  they 
were  thus  dej)rived  of  their  religious  opportunities,  separated 
from  their  natural  connections,  estranged  from  the  members 
of  their  own  families,  withdrawn  from  those  courses  of  educa- 
tion which  their  contemporaries  were  pursuing,  and  accus- 
tomed to  habits  and  manners  which  were  not  those  of  their 
own    country,    and  were    consequently  becoming   from   day 

1  Ex  parte  Bartlett,  4  Bradf.  221. 

'•i  10  Ves.  62.     See  Dawson  v.  Jay,  27  E.  L.  &  Eq.  451. 

'  Jeffreys  v.  Vanteswartsworth,  Barn.  141 ;  Jackson  v.  Hankey,  Jac.  265,  n. ; 
Stephens  v.  James,  1  M.  &  K.  627  ;  Lethem  v.  Hall,  7  Sim.  141 ;  Talbot  v.  p:arl 
of  Shrewsbury.  18  L.  J.  125.     See  Macphers.  Inf.  129-132. 

4  Ex  parte  Martin,  2  Hill  Eq.  71. 

[483] 


*  453  GUARDIAN  AND   WARD. 

*  454    to  day  less  and  less  adapted  to  the  position  *  which 

they  should  afterwards  occupy  in  their  native  land.^ 
Insane  persons  and  spendthrifts  cannot  manifestly  be  sub- 
jected to  the  same  personal  restraint  and  custody  as  infants. 
But  the  fact  that  such  Avard  occupies  his  own  house  affords 
him  no  special  immunity  against  his  guardian.  Accordingly, 
it  has  been  held  that  the  guardian  of  a  spendthrift  may  enter 
the  dwelling-house  of  the  latter,  in  the  performance  of  official 
duties,  without  his  permission  and  against  his  will.^ 

The  guardian  has  not  the  same  right  as  a  father  to  the 
personal  services  of  the  infant.  For  as  his  duty  to  educate 
and  maintain  is  limited  by  law  to  the  ward's  resources,  and  is 
not  like  the  responsibility  of  a  parent,  absolute,  so  his  rights 
are  those  of  a  representative,  who  should  seek  to  add  to  the 
trust  fund  in  his  hands  and  not  to  his  own  private  emolu- 
ment.^ 

By  the  common  law,  the  guardian  could  maintain  an  action 
of  trespass  and  recover  damages  for  his  ward  ;  and  the  stat- 
ute of  Westminster  II.,  c.  32,  gave  a  writ  of  ravishment  by 
means  of  which  he  could  recover  the  body  of  the  heir  as  well 
as  damages.^  The  equity  of  this  statute  may  jDcrhaps  extend 
to  testamentary,  chancery,  and  probate  guardians,  as  well  as 
to  guardians  in  socage  ;  on  which  principle,  it  has  been  held 
that  the  guardian  may  sue  and  recover  damages  for  the 
seduction  of  his  female  ward.^ 

The  guardian,  acting  in  loco  parentis^  may  bind  out  his 
ward  as  an  apprentice  whenever  the  father  could  doso.%  This, 
however,  is  a  matter  almost  exclusive^  of  statute  regulation. 
And,  while  the  father  is  usually  held  liable  in  damages 
*  455  for  his  *  son's  breach  of  contract,  it  would  seem  that 
the  guardian  is  not  personally  responsible  for  his  ward 
unless  the  statute  makes  him  so.^ 

1  Campbell  v.  Mackay,  2  M.  &  C.  31.  2  gtate  v.  Hyde,  29  Conn.  564. 

''  See  Bass  v.  Cook,  4  Port.  390 ;  Bouv.  Diet.  "  Guardian ; "  Bannister  v. 
Bannister,  44  Vt.  624. 

*  Bac.  Abr.  Guardian  (F).  5  Fernslee  v.  Moyer,  3  Watts  &  Serg.  416. 

^  Velde  V.  Levering,  2  Rawle,  269. 

[484] 


RIGHTS   AND   DUTIES   OF   GUARDIANS.  ♦455 

As  the  guardian  is  bound  to  promote  the  moral  welfare  of 
the  person  intrusted  to  his  care,  he  may  warn  off  from  the 
ward's  premises  any  persons  improper  for  him  to  associate 
with,  and  if  necessary,  expel  them  forcibl3\  This  right  is  to 
be  reasonably  construed  ;  and  in  the  use  of  means  and  the 
amount  of  force  necessary  to  effect  his  ol)ject,  he  is  allowed 
a  liberal  discretion,  such  as  a  parent  might  exercise  under 
like  circumstances.^  And  in  many  other  respects  the  rights 
of  a  guardian  resemble  closely  those  of  a  parent. 

The  guardian's  duties  as  to  the  ward's  person  are  those  of 
protection,  education,  and  maintenance.  In  exercising  them, 
he  is  bound  to  regard  the  ward's  best  interests.  Guardians, 
as  we  have  seen,  are  seldom  appointed  where  there  is  not 
some  property.  But  even  though  the  ward  is  penniless,  we 
are  not  to  suppose  that  one  vested  with  the  full  right  of  custody 
can  neglect  with  impunity  those  offices  of  tenderness  which 
common  charity  as  well  as  parental  affection  suggest.  For  to 
the  orphan  he  stands  in  the  place  of  a  parent,  and  supplies 
that  watchfulness,  care,  and  discipline  which  are  essential  to 
the  young  in  the  formation  of  their  habits,  and  of  which  being 
deprived  altogether,  they  would  better  die  than  live. 

It  is,  however,  to  be  always  borne  in  mind  that  while  the 
father  is  bound  to  educate  and  maintain  his  children  abso- 
lutely and  from  his  own  means,  no  such  pecuniary  responsi- 
bility is  imposed  upon  the  guardian.  The  latter  need  only 
use  for  that  purpose  the  ward's  fortunes.  Hence,  in  supply- 
ing the  wants  of  his  ward,  he  is  to  consider,  not  the  style  of 
life  to  which  they  have  been  accustomed,  so  much  as  the 
income  of  their  estate  at  his  disposal.  Whatever  their  social 
rank  may  have  been,  he  may,  provided  they  are  left  destitute, 
place  them  to  work,  or  if  they  are  too  young  or  feeble, 
surrender  them  to  some  charitable  *  institution.  He  *  456 
should,  however,  act  with  delicacy  and  prudence  ;  he 
may  properly  consider  in  this  connection  the  habits  and  tastes 
of  the  children  and  the  wishes  of  their  relatives ;  and  he  can 
relieve  himself  of  responsibility  by  asking  judicial  guidance. 

1  Wood  '.-.  Gale,  10  N.  H.  247. 

[485] 


*  456  GUARDIAN  AND  WARD. 

The  courts  show  a  Uberal  disposition  to  protect  the  guardian 
from  personal  liability  on  account  of  his  ward.  And  if  a 
guardian  has  permitted  the  ward,  at  his  own  cost,  to  remain 
in  the  care  and  custody  of  another,  without  express  contract 
as  to  the  period  of  time,  he  may,  whenever  he  pleases,  termi- 
nate his  personal  liabilit}^  by  giving  notice.  Nor  does  it  affect 
the  case  that  his  ward  is  then  too  sick  to  be  removed.^ 

But  if  the  income  of  the  ward's  estate  is  ample  for  payment 
of  the  necessaries  supplied  him,  the  creditors  may,  by  a 
proper  course  of  procedure,  have  it  subjected  to  the  satisfac- 
tion of  their  just  claims.  And  this  too,  it  would  appear, 
notwithstanding  an}'  personal  undertaking  on  the  guardian's 
part.2  Not  even  funds  derived  from  a  minor's  pension,  granted 
under  the  United  States  laws,  are  exempt  from  liability  for 
the  ward's  support.^ 

On  the  other  hand,  the  guardian  may  make  himself  liable 
for  his.  ward  whenever  he  chooses  to  do  so.  And  if  a  guar- 
dian contracts  with  another  to  support  his  ward,  he  may 
become  personally  bound  by  his  failure  to  limit  the  right 
for  indemnity  to  the  estate  in  his  hands.  On  this  principle, 
a  case  in  Vermont  was  decided  a  few  years  ago.^  The  guar- 
dian had  contracted  for  the  board  of  his  ward,  at  a  dollar  and 
a  half  a  week,  fixing  no  limitation  as  to  time.  The  person 
furnishing  the  board  afterwards  notified  him  that  he  should 
raise  the  price  to  two  dollars  a  week,  and  that  if  this  was  not 
satisfactory  the  ward  must  be  taken  away.  The  guardian  did 
not  take  the  ward  away,  nor  on  the  other  hand  did  he  ex- 
pressly accede  to  the  new  contract.  But  the  court  inferred 
from  the  circumstances  that  he  had  made  himself  personally 
liable  for  the  increased  rate.  It  was  observed  in  this  case 
that  the  guardian  has  the  possession  and  control  of  the  ward's 

1  Spring  V.  Woodwortli,  4  Allen,  326  ;  Overton  v.  Beavers,  19  Ark.  623  ;  Bre- 
din  V.  Dwen,  2  Watts,  95  ;  Hussey  v.  Roundtree,  Busb.  110  ;  Gwaltney  v.  Can- 
non, 31  Ind.  227  ;  McDaniel  v.  Mann,  25  Tex.  101 ;  Ford  v.  Miller,  18  La.  Ann. 
571. 

2  Barnum  v.  Frost,  17  Gratt.  398  ;  Walker  v.  Browne,  3  Bush,  686.  Suit  on 
the  probate  bond  by  permission  of  court  is  the  common  remedy  in  many  States. 
Cole  V.  Eaton,  8  Cush.  587. 

i  Welch  V.  Burris,  29  Iowa,  186. 

^  Hutchinson  v.  Hutchinson,  19  Vt.  437. 

[  486  ] 


RIGHTS   AND  DUTIES  OF  GUARDIANS.  *  456 

estate,  for  his  support  and  maintenance,  and  has  the  power  of 
indemnifying  himself  for  any  contracts  he  may  make  ;  that  it  is 
his  business  to  know  the  amount  and  situation  of  the  estate, 
and  that  he  is  not  obliged  to  incur  any  liability  beyond  it.  If 
he  do  so  it  is  his  own  fault,  for  which  others,  who  cannot  be 
so  well  possessed  of  this  knowledge,  ought  not  to  suffer. 
But  the  court  also  held  that  *  under  the  above  contract  *  457 
the  guardian  was  not  personally  liable  for  extra  charges 
against  the  ward,  such  as  repairs  on  clothing,  washing,  care 
and  medical  attendance  while  sick,  and  burial  expenses. 

For  necessaries  of  his  ward,  supplied  by  the  guardian's 
order  and  on  his  credit,  the  guardian  then  is  liable  ;  and  this 
on  the  principle  to  be  noticed  hereafter,  that  the  guardian  has 
made  a  contract.  He  is  of  course  entitled  to  reimbursement 
for  the  necessaries  thus  supplied  by  himself  from  the  ward's 
estate.  So,  where  he  advances  money  for  the  ward's  main- 
tenance and  education.^  On  the  ward's  own  contract  for 
necessaries,  the  guardian  is  not  personally  liable.  And  it 
would  appear  from  some  cases  that  his  knowledge  of  the 
ward's  contract  and  failure  to  dissent  will  not  suffice  ;  in 
other  words,  that  an  express  contract  should  be  shown  to 
charge  the  guardian  personally.  Yet  such  a  contract  of  the 
ward  may  be  ratified  by  the  words  or  acts  of  a  guardian  ;  and 
we  presume  that  he  may  generally  be  held  bound  on  a  con- 
tract shown  by  strong  implication  to  have  existed  between 
him  and  the  party  furnishing  education  or  support.^  As  a 
rule  the  guardian  has  the  same  right  to  judge  as  to  what  are 
necessaries,  according  to  the  estate  and  social  position  of  his 
ward  that  a  parent  would  have  for  his  own  child.^  It  is  held 
that  the  guardian  appointed  in  one  State  may  sue  a  foreign 
guardian  for  the  support  and  education  of  wards  left  with  the 
former  by  consent  of  the  latter  guardian.*  So  wherever  a 
town  is  liable  for  the  support  of  a  ward  as  a  pauper,  his  guar- 
dian may  claim  reimbursement  for  necessary  expenses  incurred 

1  Smith's  Appeal,  30  Tenn.  St.  397 ;  infra,  p.  465. 

2  Tucker  r.  McKee,  1  Bailey,  344;  Hargrove  v.  Webb,  27  Geo.  172;  Oliver 
V.  Houdlet,  13  Mass.  237. 

*  Nicholson  v.  Spencer,  11  Geo.  607 ;  Kraker  v.  Byruni,  13  Rich.  163. 

*  Spring  V.  Wood  worth,  2  Allen,  206. 

[  487  ] 


*457  GUARDIAN  AND   WARD. 

after  the  ward's  property  has  been  exhausted.^  A  guardian 
is  presumed  to  furnish  all  necessaries  for  his  infant  ward,  and 
a  stranger  who  furnishes  them  must  in  general  contract  with 
the  guardian  himself.^  But  where  the  guardian  makes  pur- 
chases, the  party  furnishing  the  goods  is  not  bound  to  see 
that  payment  is  made  from  the  ward's  income.  This  risk 
must  be  run  by  the  guardian  himself,  for  the  facts  are  within 
his  own  peculiar  knowledge.^ 

The  doctrine  has  been  repeatedly  declared  that  no  guardian 
can  expend  more  than  the  income  of  his  ward's  estate  without 
proper  judicial  sanction.  This  is  the  settled  rule  in  chancery, 
and  it  is  universally  applicable  in  the  United  States.*  And  a 
similar  principle  prevails  under  the  civil  law.^  But  to  what 
extent  the  guardian  renders  himself  personally  liable,  by  ex- 
ceeding the  income  without  previous  sanction  of  the  court,  is 
not  quite  clear.  The  English  rule  is  undoubtedly  strict.  But 
as  to  probate  guardians,  and  in  modern  practice,  legal  formal- 
ities have  been  considerably  relaxed.  In  most  of  the  United 
States  the  guardian  is,  doubtless,  justified  in  breaking  the 
principal  fund,  under  strong  circumstances  of  necessity,  for 
the  benefit  of  his  ward,  and  he  may  leave  his  conduct  to  the 
subsequent  approval  of  the  court  when  he  presents  his  ac- 
counts. In  cases  of  risk  and  uncertainty,  however,  the  projjer 
course  is  to  obtain  a  previous  order.^ 

The  order  in  which  the  ward's  property  should  be  expended 
for  his  support  and  education  is  as  follows :  first,  the 
*  458    income  of  the  property  ;  *  next,  if  that  proves  insuffi- 
cient, the   principal  of  personal  property  ;    lastly,  if 
both  are  inadequate,  the  ward's  real  estate,  or  so  much  of  it 
as  may  be  necessary.     The  ward's  real  estate  can  never  be 

1  Fisk  V.  Lincoln,  19  Pick.  473.     See  Preble  v.  Longfellow,  48  Me.  279. 

2  State  V.  Cook,  12  Ired.  67 ;  Royston  v.  Royston,  29  Geo.  82. 

8  Broadus  v.  Rosson,  3  Leigh,  12  ;  Hutchinson  v.  Hutchinson,  19  Vt.  437. 

*  In  re  Bostwick,  4  Johns.  Ch.  100  ;  Myers  i-.  Wade,  6  Rand.  444 ;  2  J.  J. 
Marsh.  403;  Villard  v.  Cliovin,  2  Strobh.  Eq.  40;.  State  v.  Clark,  16  Ind.  97; 
Beeler  v.  Dunn,  3  Head,  87. 

5  Payne  v.  Scott,  14  La.  Ann.  760. 

6  Story  Eq.  Juris.  §  1355  ;  Chapline  v.  Moore,  7  Monr.  150 ;  Davis  v.  Hark- 
ness,  1  Gilm.  173  ;  Davis  v.  Roberts,  1  Sm.  &  M.  Ch.  543 ;  Royston  v.  Royston, 
29  Geo.  82;  Foteaux  v.  Lepage,  6  Clarke  (Iowa),  123  ;  Gilbert  v.  McEaclien,  38 
Miss.  469  ;  Phillips  v.  Davis,  2  Sneed,  520  ;  Cummins  v.  Cummins,  29  111.  452. 

[  488  ] 


RIGHTS  AND  DUTIES   OF  GUARDIANS.  *  458 

sold,  except  under  a  previous  order  of  court.  Nor  can  a  guar- 
dian use  in  maintaining  bis  ward  the  proceeds  of  real  estate, 
sold  for  the  purpose  of  reinvestment  only,  any  more  than  he 
could  have  used  the  real  estate  itself.  He  should  ask  to  sell 
for  the  purpose  of  maintenance.^ 

In  some  cases,  it  becomes  both  reasonable  and  necessary  to 
exceed  the  ward's  income.  Thus  courts  of  chancery  authorize 
the  capital  to  be  broken  upon,  where  the  property  is  small  and 
the  income  inadequate  for  support.^  As  where  the  ward's 
education  is  nearly  completed,  especially  if  he  will  thereby 
be  jRtted  for  a  profession.  Or  where  the  ward  is  mentally  or 
physically  unfit  to  be  bound  out  as  an  apprentice.^  So,  too, 
in  case  of  extreme  sickness,  or  other  emergency,  where  an 
unusual  outlay  becomes  necessary.^  And  the  guardian  can 
anticipate  the  income  of  one  year  in  supplying  the  casual  de- 
ficiency of  another.^  And  he  may  treat  an  increase  of  value 
in  his  ward's  property  as  income.^  And  he  may  use  the  ac- 
cumulated profits  of  previous  years  where  necessary.  In  short, 
the  guardian  is  allowed  a  liberal  discretion  in  expenditures 
for  maintenance  and  education  so  long  as  he  refrains  from 
encroaching  upon  the  ward's  capital.'  And  it  is  held  that  he 
is  limited  in  his  disbursements,  not  to  the  income  of  the 
ward's  estate  actually  in  his  hands,  but  to  the  income  of  the 
ward's  estate  wherever  situated.^ 

As  the  father  is  bound  to  support  his  own  children, 
he  cannot,  *  when  guardian,  claim  the  right  to  use  the  *  459 
income  of  their  property  for  that  purpose  ;  much  less  to 
disturb  the  principal.  But,  as  we  have  seen,  a  father  is  allowed, 
when  his  means  are  small,  to  claim  assistance  from  their  for- 
tunes, to  bring  them  up  in  becoming  style.  And  where  the 
father,  when  acting  as  guardian  for  his  own  children,  might 

I  Strong  V.  Moe,  8  Allen,  125. 

•^  McDowell  V.  Caldwell,  2  McC.  Ch.  43 ;  Farrance  v.  Viley,  9  E.  L.  &  Eq. 
219. 

'  Johnston  v.  Coleman,  3  Jones  Eq.  290. 

*  Long  V.  Norcom,  2  Ired.  Eq.  354;  Clarke,  In  re,  17  E.  L.  &  Eq.  599. 

*  Cannichael  v.  Wilson,  3  Moll.  87;  Bybee  v.  Tharp,  4  B.  Monr.  313. 
6  Long  V.  Norcom,  2  Ired.  Eq.  3-54 ;  Macphers.  Inf.  337,  338. 

">  Brown  v.  Mullins,  24  Miss.  204. 

8  Foreman  v.  Murray,  7  Leigh,  412  ;  Maclin  v.  Smith,  2  Ired.  Eq.  371.     And 
see  Coe's  Trust,  In  re,  4  K.  &  J.  199. 

[489] 


♦  459  GUARDIAN  AND  WARD. 

have  reimbursed  himself,  any  other  person,  as  guardian, 
may  help  him ;  rather,  however,  for  the  future  than  for  the 
past.^ 

The  allowance  of  money  for  the  maintenance  and  education 
of  infants  constitutes  an  important  branch  of  the  English  as 
contrasted  with  our  American  chancery  jurisprudence.  Gen- 
erally speaking,  whenever  application  is  made  for  the  appoint- 
ment of  a  chancery  guardian,  maintenance  is  also  applied  for  ; 
and  the  guardian  receives  no  more  than  the  annual  sum  fixed 
by  the  court.  The  ward's  whole  fortune  is  held  at  the  dis- 
posal of  the  court,  whether  the  infant  was  made  a  ward  by 
suit  or  otherwise.  If  a  suit  be  pending,  the  guardian  receives 
his  allowance  through  the  receiver  or  some  other  officer  of  the 
court.  If  there  be  no  suit  pending,  the  executor  or  trustee 
pays  the  annual  sum  fixed  by  the  court ;  and,  if  the  whole 
proceeds  of  real  estate  be  ordered  for  maintenance,  the  ten- 
ants are  safe  in  attorning  to  the  guardian.  But  parties  mak- 
ing payment  are  discharged  only  to  the  extent  of  the  allowance 
decreed.^ 

Testamentary  guardians  are,  however,  frequently  author- 
ized by  the  testator  to  apply  at  discretion  from  the  in- 

*  460    come  of  the  *  infant's  fund,  or  from  the  capital,  for  his 

support ;  and  such  discretion  Avill  not  be  controlled  so 
long  as  the  guardian  acts  in  good  faith.  But  trustees  and 
guardians  frequently  procure  an  order  of  maintenance,  not- 
withstanding, in  order  to  relieve  themselves  of  all  responsi- 
bility.^ Doubts  were  formerly  entertained  of  the  power  of 
chancery  to  interfere  in  these  and  other  cases  where  the 
infant  had  not  been  made  a  ward  of  chancery  by  suit.  No 
such  doubts  now  exist,  however ;  and  the  court  will,  on  pe- 
tition, and  without  formal  proceedings  by  bill,  settle  a  due 
maintenance.^ 

1  Macphers.  Inf.  219;  Clark  v.  Montgomery,  23  Barb.  464;  Beasley  r.  Wat- 
son, 41  Ala.  234 ;  Welch  v.  Burris,  29  Iowa,  186  ;  Myers  v.  Wade,  6  Rand.  444  ; 
Walker  v.  Crowder,  2  Ired.  Eq.  478.     See  supra,  pp.  322,  326. 

•'!  Macphers.  Inf.  106  ;  Ex  parte  Starkie,  3  Sim.  839. 

3  Macphers.  Inf  213;  Livesey  v.  Harding,  Taml.  460  ;  French  v.  Davidson, 
3  Madd.  396 ;  Collins  v.  Vining,  1  C.  P.  Cooper,  472. 

*  Story  Eq.  Juris.  §  1354,  and  cases  cited.  And  see  Kettletas  v.  Gardner,  1 
Paige,  488. 

[490] 


RIGHTS  AND   DUTIES   OF  GUARDIANS.  *  460 

Courts  of  chancery  treat  the  guardian  as  the  proper  judge 
of  the  place  where  his  ward  shall  be  educated,  and  Avill,  if 
necessary,  issue  orders  to  compel  obedience.  But  if  guardians 
disagree  as  to  the  mode  of  their  ward's  education,  the  court 
will  exercise  its  own  discretion  and  will  not  consider  itself 
bound  by  the  wishes  of  the  majorit}^^  Parol  evidence  of  the 
deceased  father's  wishes  is  admissible,  and  the  court  will  pay 
attention  to  such  wishes,  although  informally  expressed,  in 
judging  of  the  mode  of  education  of  children  as  well  as  in 
the  appointing  of  a  guardian.^ 

The  subject  of  a  child's  religious  education  received  much 
consideration  in  a  late  English  case,  where,  notwithstanding 
the  father's  directions  in  his  will  appointing  a  testamentary 
guardian  who  was,  like  himself,  a  Roman  Catholic,  a  daugh- 
ter nine  years  old  was  allowed  to  remain  with  her  mother,  a 
Protestant,  and  to  be  brought  up  in  the  same  religious  faith ; 
and  this  against  the  guardian's  wishes,  tardily  expressed.  An 
antenuptial  agreement  made  between  the  husband  and  wife 
stipulating  that  boys  of  the  marriage  should  be  educated 
in  the  religion  of  the  father  and  girls  in  that  of  the  mother, 
was,  indeed,  declared  of  no  binding  force  as  a  contract ;  and 
yet  it  was  added  that  this  agreement  would  have  weight  with 
the  court  in  considering,  after  the  father's  death,  whether  he 
had  abandoned  his  right  to  educate  this  daughter  in  his  own 
religion.  The  welfare  of  the  child  was,  under  the  circum- 
stances, deemed  a  very  important  consideration.^ 

'  Story  Eq.  Juris.  §  1340;  Macphers.  Inf.  121;  Tremain's  Case,  Stra. 
168 ;  Hall  v.  Hall,  3  Atk.  721. 

2  Anon.,  2  Ves.  Sen.  56 ;  Campbell  v.  Mackay,  2  M.  &  C.  34  ;  contra,  Storke 
V.  Storke,  3  P.  Wms.  51. 

3  Andrews  v.  Salt,  L.  R.  8  Ch.  622.  See  In  re  Newbery,  L.  R.  1  Ch.  263. 
where  the  deceased  father's  wishes  prevailed,  as  against  the  mother  and  the 
children,  so  tliat  the  minor  children  might  not  be  taken  to  worship  at  a  chapel 
of  the  "  Plymouth  Brethren." 

[491] 


*461  GUARDIAN    AND   WARD. 


*461  *  CHAPTER   VI. 

RIGHTS    AND    DUTIES    OP    THE    GUARDIAN    AS    TO    THE    WARD'S 

ESTATE. 

We  have  seen  that  chancery  guardians  have  only  a  limited 
authority  over  the  estates  of  their  v^^ards,  inasmuch  as  the 
court  makes  a  fixed  allowance,  to  be  consumed  in  mainten- 
ance and  education,  leaving  the  bulk  of  the  infant's  estate 
in  the  hands  of  executors,  trustees,  or  its  own  officers.  In 
this  country,  guardians  almost  invariably  assume  the  full 
management  of  their  ward's  fortunes,  unless  restrained  by  the 
will  of  the  testator  ;  and,  whenever  they  do  so,  they  are 
bound  by  the  principles  which  regulate  the  general  conduct 
of  all  trustees. 

The  leading  principle  recognized  by  chancery  in  supervising 
the  guardian's  conduct  is,  that  the  ward's  interests  are  of 
paramount  consideration.  Hence,  two  observations  are  to  be 
made  at  the  outset  of  this  chapter.  The  first  is,  that  un- 
authorized acts  of  the  guardian  may  be  sanctioned  if  they 
redound  to  the  ward's  benefit;  while,  on  the  other  hand,  for 
unauthorized  acts  b}^  which  the  ward's  estate  suffers,  the 
guardian  must  pay  the  penalty  of  his  imprudence.^  The 
second  is,  that  the  guardian's  trust  is  one  of  obligation  and 
duty,  and  not  of  speculation  and  profit.^  We  shall  have 
occasion  to  apply  these  observations  as  we  proceed. 

Among  the  most  obvious  powers  and  duties  of  the  guar- 
dian-in  the  management  of  his  ward's  property  are 
*  462  these  :  To  collect  *  all  dues  and  give  receipts  for  the 
same.  To  procure  such  legacies  and  distributive 
shares  from  testators  or  others  as  may  have   accrued.      To 

1  Milner  v.  Lord  Harewood,  18  Ves.  Jr.  259 ;  Capehart  v.  Huey,  1  Hill  Ch. 
405. 

-  2  Kent  Com.  229. 

[492] 


RIGHTS   AND  DUTIES   OF   GUARDIAN.  *  462 

take  and  hold  all  property  settled  upon  the  ward  by  way  of 
gift  or  purchase,  unless  some  trustee  is  interposed.  To  col- 
lect dividends  and  interest,  and  the  income  of  personal  prop- 
erty in  general.  To  receive  and  receipt  for  the  rents  and 
profits  of  real  estate.  To  receive  moneys  due  the  Avard  on 
bond  and  mortgage.  To  pay  the  necessary  expenses  of  the 
ward's  personal  protection,  education,  and  support.  To  invest 
and  reinvest  all  balances  in  his  hands.  To  sell  the  capital  of 
the  ward's  property,  change  the  character  of  investments 
when  needful,  convert  real  into  personal  and  personal  into 
real  estate,  in  a  suitable  exigency;  but  not  without  judicial 
direction.  To  account  to  the  ward  or  his  legal  rejjresenta- 
tives  at  the  expiration  of  his  trust.  And,  in  general,  to 
exercise  the  same  prudence  and  foresight  which  a  good  busi- 
ness man  would  use  in  the  management  of  his  own  fortunes, 
though  under  more  guarded  restraints.^ 

The  right  to  collect  a  debt  implies  the  right  to  sue.  Hence, 
the  guardian  may,  in  the  exercise  of  good  discretion,  and  act- 
ing, if  need  be,  under  competent  legal  advice,  institute  suits 
to  recover  the  ward's  property.^  And  this  right  extends  to 
property  fraudulently  obtained  from  the  ward  before  the 
guardian's  appointment.^  But  he  must  sue  in  general  in  the 
name  of  his  ward  (except  under  qualifications  to  be  noticed), 
and  not  in  his  own  name.^  And  if  he  institutes  groundless 
and  speculative  suits,  and  is  unsuccessful,  he  must  bear  the 
loss.^  So,  too,  whenever  his  conduct  shows  fraud  or  heedless 
imprudence.  Otherwise,  he  is  entitled  to  his  costs  and  legal 
expenses  out  of  the  ward's  estate.  The  rule  in  many  States 
now  is  that  the  guardian  sues  and  is  to  be  sued  upon  his  own 
express  contract  touching  the  ward's  estate.  And  in  various 
instances  he  may  appear  and  make  defence  for  the  ward.  But 
in  other  States  the  older  rule  of  the  English  chancery  is  fol- 

1  Genet  v.  Tallmadge,  1  Jolins.  Ch.  3  ;  Jackson  v.  Sears,  10  Johns.  4o5  ;  Eicli- 
elberger's  Appeal,  4  Watts,  84;  Swan  v.  Dent,  2  Md.  Ch.  Ill;  Crenshaw  v. 
Crenshaw,  4  Rich.  Eq.  14;  Chapman  v.  Tibbits,  33  N.  Y.  289. 

'^  Smith  V.  Bean,  8  N.  11.  15;  Sheplierd  v.  Evans,  9  Ind.  2G0. 

'  Somes  I'.  Skinner,  16  Mass.  348. 

•*  Longstreet  v.  Tilton,  Coxe,  38 ;  Siilings  v.  Bumgardner,  9  Gratt.  273. 

5  Brown  v.  Brown,  6  E.  L.  &  Eq.  567  ;  Savage  v.  Diekson,  16  Ala.  257. 

[493] 


*  462  GUARDIAN  AND   WARD. 

lowed,  which  required  a  guardian  ad  litem  to  make  defence, 
the  infant  being  the  party  sued.^ 

1  Taylor  v.  Kilgore,  33  Ala.  214  ;  1  Foster  (N.  H.),  204.  Among  the  cases  in 
which  the  guardian  has  been  allowed  to  sue  in  his  own  name  are  the  following : 
For  non-payment  of  rent.  Pond  v.  Curtiss,  7  Wend.  45.  For  trespass  on  his 
ward's  lands.  Truss  v.  Old,  6  Rand.  556 ;  Bacon  v.  Taylor,  Kirby,  368.  For 
intermeddling  with  the  issues  and  profits  thereof.  Beecher  v.  Grouse,  19  Wend. 
306.  For  an  injury  to  any  property  of  the  ward  in  his  actual  possession.  Fuqua 
V.  Hunt,  1  Ala.  197.  Or  where  he  has  the  right  of  possession.  Sutherland  v. 
GoflF,  5  Porter,  608;  Field  v.  Lucas,  21  Geo.  447.  Or  on  a  note  payable  to  him- 
self, as  guardian,  though  given  for  a  debt  due  to  the  ward.  JoUifFe  v.  Higgins, 
6  Munf.  3 ;  Baker  v.  Ormsby,  4  Scam.  325 ;  Thacher  v.  Dinsmore,  5  Mass.  299. 
Or,  as  it  would  appear,  on  his  express  contract  toucliing  the  ward's  estate. 
Thomas  v.  Bennett,  56  Barb.  197. 

But  debts  and  demands  of  the  ward  should  in  general  be  prosecuted  in  the 
ward's  name.  And  the  guardian  cannot  sue  in  his  own  name,  after  his  female 
ward's  marriage,  for  a  debt  due  her  before  such  marriage.  Barnet  v.  Common- 
wealth, 4  J.  J.  Marsh.  389.  Nor  on  a  promise  to  the  guardians  of  the  minor 
children  of  A.  B.,  for  this  is  a  promise  to  the  wards.  Carskadden  v.  McGliee,  7 
Watts  &  Serg.  140.  Nor  on  an  award,  although  he  had  submitted  to  arbitration. 
Hutchins  v.  Johnson,  12  Conn.  376.  Nor  where  a  statute  authorizes  guardians 
to  "  demand,  sue  for,  and  receive  all  debts  due "  their  wards.  Hutchins  v. 
Dresser,  26  Me.  76.  And  see  Hoare  v.  Harris,  11  111.  24;  Fox  v.  Minor,  32  Cal. 
111.  He  cannot  act  on  a  petition  for  partition.  Stratton's  Case,  1  Johns.  509  ; 
Totten's  Appeal,  46  Penn.  St.  301.  Nor  subscribe  a  libel  for  divorce.  Winslow 
V.  Winslow,  7  Mass.  96.  He  is  sometimes  authorized  by  statute,  however,  to  sue 
in  his  own  name  for  the  use  of  the  ward.  Fuqua  v.  Hunt,  1  Ala.  197  ;  Long- 
uiire  V.  Pilkington,  37  Ala.  296 ;  Mebane  v.  Mebane,  66  N.  C.  334.  And  see 
Anderson  v.  Watson,  3  Met.  (Ky.)  509  ;  Hines  v.  MuUins,  25  Geo.  696. 

A  guardian  is  to  be  sued  in  person  upon  notes  executed  by  him  in  his  official 
capacity.     See  1  Pars.  Bills  &  Notes,  89,  90  ;  Thacher  v.  Dinsmore,  supra. 

A  guardian  is  not  liable  in  assumpsit  for  necessaries.  Cole  v.  Eaton,  8  Cush. 
587.  But  he  may  be  sued  upon  his  own  contract  touching  his  ward's  estate. 
Stevenson  v.  Bruce,  10  Ind.  397.  And  judgment  sliould  then  be  against  him 
personally,  and  not  against  the  ward.  Clark  v.  Casler,  1  Cart'.'  (Ind.)  243.  Wliere 
the  judgment  is  to  bind  the  ward's  property,  suit  should  be  against  the  ward. 
Otherwise,  the  property  of  the  guardian  must  be  levied  upon,  who  will  look  to 
the  infant's  estate  for  his  own  reimbursement.  Tobin  v.  Addison,  2  Strobh.  3  ; 
Clark  V.  Casler,  1  Smith  (Ind.),  150.  And  see  Raymond  v.  Sawyer,  37  Me.  406. 
As  to  conclusiveness  of  judgments,  see  Morris  v.  Garrison,  27  Penn.  St.  226. 
Judgment  against  a  person  "  as  guardian,"  is  a  judgment  against  him  personally, 
the  additional  words  being  descriptive  merely.  No  action  lies  against  a  guar- 
dian upon  the  ward's  contracts  or  debts ;  but  suit  should  be  against  the  ward, 
who  may  defend  by  guardian.  Brown  v.  Chase,  4  Mass.  439 ;  Willard  v.  Fair- 
banks, 8  II.  1. 1.  In  dower  and  partition  proceedings,  a  guardian  may  appear  for 
the  ward,  like  any  guardian  ad  liU/m,  in  some  States.  Rankin  v.  Kemp,  21  Ohio 
St.  651  ;  Cowan  v.  Anderson,  7  Cold.  284.  In  Massachusetts,  a  ward's  money 
may  be  readied  by  trustee  process  against  him  or  taken  on  execution.  Simmons 
V.  Almy,  100  Mass.  239. 
[494j 


RIGHTS  AND  DUTIES   OF   GUARDIAN.  *  463 

*  A  guardian  is  now  generally  permitted  to  siihmit  *  463 
to  arbitration  questions  and  controversies  respecting 

the  property  and  interests  of  his  ward,  and  the  award  made 
in  pursuance  thereof  is  binding  on  all  parties. ^  So  he  may 
compromise  when  acting  in  good  faith  and  sound  dis- 
cretion for  the  benefit  of  his  ward.  *  But  the  guar-  *  464 
dian's  compromise  of  a  baseless  and  unjust  claim 
would  not  be  upheld  in  equity  as  against  the  ward,  nor,  as  it 
would  seem,  against  the  guardian  himself,  no  blame  attaching 
to  the  latter.2  An  infant  cannot,  in  any  event,  be  bound  by 
the  fraudulent  compromise  of  his  guardian.^  On  the  same 
general  princii^les,  and  with  like  limitations,  the  guardian 
may  release  a  debt  due  his  ward.  The  same  rule  as  to  com- 
pounding and  releasing  debts  appears  to  prevail  in  England 
as  in  this  country  ;  and  it  applies  to  all  trustees  alike."^  The 
original  doctrine  seems  to  be  this  :  that  he  cannot  bind  his 
ward  by  arbitration  unless  the  court  shall  previously  author- 
ize him  to  do  so,  or  subsequently  approve,  on  the  ground 
that  it  was  for  the  ward's  benefit. 

A  guardian,  it  is  said,  cannot  by  his  general  contracts  bind 
the  person  or  estate  of  his  ward.^  Nor  can  he  avoid  a  bene- 
ficial contract  made  by  his  infant  ward.°  Nor  waive  a  benefit 
to  which  the  ward  is  entitled  by  decree.^  For  any  thing 
which  he  does  injurious  to  the  infant  is  a  violation  of  duty. 
And  the  insertion  in  a  contract  of  words  importing  the  title 
"guardian"  will  not  shield  the  guardian  from  personal  lia- 
bility. In  the  language  of  Chief  Justice  Parsons :  "  As  an 
administrator  cannot  by  his  promise  bind  the  estate  of  the 
intestate,  so  neither  can  the  guardian  by  his  contract  bind  the 
person  or  estate  of  his  ward."  ^     But  the  rule  is,  after  all,  a 

1  Weed  V.  Ellis,  3  Gaines,  253;  Weston  v.  Stewart,  11  Me.  326;  Hutchins 
V.  Johnson,  12  Conn.  376;  Goleman  v.  Turner,  1-1  S.  &  M.  118;  Strong  v. 
Beroujon,  18  Ala.  168. 

'^  Underwood  v.  Brockman,  4  Dana,  309. 

''  Lunday  v.  Thomas,  26  Geo.  637. 

*  Blue  V.  Marshall,  3  P.  Wms.  381. 

*  Jones  V.  Brewer,  1  Pick.  317  ;  Tenney  v.  Evans,  14  N.  II.  343. 

6  Oliver  v.  Houdlet,  13  Mass.  237.     And  see  Bac.  Abr.  Guardian  (G). 
t  Hite  V.  llite,  2  Hand.  409.  8  Forster  v.  Fuller.  6  Mass.  68. 

[495] 


*  464  GUARDIAN  AND   WARD. 

technical  one  ;  for  the  insertion  of  words  showing  represent- 
ative capacity  imports  that  the  contract  was  made  as  a  trus- 
tee. And  on  all  such  contracts,  fairly  made,  the  guardian  is 
entitled  to  reimbursement  from  his  ward's  estate.  It  is  sim- 
ply meant  that  the  person  with  whom  the  guardian  contracts 
on  behalf  of  his  ward  may  presume  a  sufficiency  of 

*  465    assets.     If  one  acting  in  a  trust  capacity  *  could  claim 

exemption  from  all  personal  liability,  on  the  ground 
that  there  was  none  of  the  ward's  property  left  in  his  hands 
for  payment,  he  might  abuse  his  privileges.  His  knowledge 
of  the  exact  state  of  the  trust  fund  and  his  power  of  manage- 
ment would  give  him  an  immense  advantage  over  the  other 
contracting  party.  Hence  the  propriety  of  the  rule  that 
guardians  are  jjersonally  bound  on  their  contracts,  in  dealing 
with  others  on  the  ward's  behalf  while  in  turn  they  bind  the 
estate  by  charging  their  expenses  to  the  ward's  account,  to 
be  passed  upon  by  the  court.  The  insertion  of  words  imply- 
ing a  trust  becomes  therefore  essential  in  determining  whether 
a  contract  was  intentionally  made  by  the  guardian  on  his  own 
or  his  ward's  account.  If  the  guardian  contracts  a  debt  for 
his  ward's  benefit,  he  becomes,  in  this  sense,  personally  lia- 
ble ;  and  this  even  though  the  debt  be  for  necessaries.^ 

The  title  to  promissory  notes  made  payable  to  the  guardian 
is  prima  facie  in  him.     And  this  is  true,  though  his  author- 
ity has  ceased.     Hence  he  may  maintain  suit,  unless 

*  466    the  defendant  *  can  show  that  it  has  been  transferred 

to  the  successor,  or  otherwise  disprove  title.^  The 
guardian  may,  however,  indorse  over  such  note  on  the  cessa- 
tion of  his  authority ;  in  which  case  the  person  in  lawful 
possession  should  sue.  So  too  the  guardian  may,  after  his 
ward's  death,  transfer  a  note  for  the  ward's  money,  payable 
to  the  ward  or  bearer,  to  a  third  person  for  collection.^ 

The  promise  of  a  guardian  to  pay  his  ward's  debts  is  not 
collateral,  within    the   statute   of   frauds ;  and   therefore   it 

1  Simms  v.  Norris,  5  Al<a.  42.     And  see  supra,  pp.  456-458,  as  to  the  ward's 
necessaries. 

■^  Cliambles  v.  Vick,  34  Miss.  109  ;  supra,  p.  463,  n. ;  Fountain  i*.  Anderson, 
33  Geo.  372;  King  v.  Seals,  45  Ala.  415. 

3  Fletcher  v.  Fletcher,  29  Vt.  98. 
[  496  ] 


EIGHTS  AND  DUTIES   OF  GUARDIAN.  *  466 

need  not  be  expressed  in  writing.^  And  where  a  guardian, 
on  surrendering  his  trust,  transfers  to  his  successor  a  debt  due 
the  ward,  this  is  sufficient  consideration  to  support  the  prom- 
ise of  the  latter  to  pay  the  former  guardian's  debt.^ 

Conversions,  that  is  to  say,  changes  made  in  the  character 
of  trust  property,  from  personal  into  real  or  real  into  personal 
estate,  are  never  favored,  especially  where  the  natural  con- 
sequence would  be  to  vary  rights  of  inheritance.  The  pre- 
vious sanction  of  chancery  should  always  be  sought  ;  and 
this  is  only  given  under  strong  circumstances  of  propriety. 
The  same  may  be  said  of  exchanges  of  the  ward's  property. 
Courts  are  reluctant  to  disturb  the  property  of  those  who  are 
only  temporaril}'^  disabled  from  assuming  full  control.  Sales  of 
real  estate  are  in  general  only  partial,  and  for  necessary  pur- 
poses. But  sales  and  exchanges  of  personal  estate  are  very 
common.  And  the  guardian  may  sell  personal  estate  for  the 
purposes  of  the  trust  without  a  previous  order  of  court,  pro- 
vided he  acts  fairly  and  Avith  good  judgment ;  though  his 
safer  course  is  to  obtain  permission.  But  sales  of  the  real 
estate  of  the  ward  would  be  extremely  perilous,  if  not  abso- 
lutely void,  unless  previous  authority  had  been  obtained. 
Undoubtedly,  they  could  not  bind  the  ward  under  such  cir- 
cumstances. Nor  is  the  guardian  permitted  to  sell  first 
and  obtain  judicial  sanction  afterwards.  So  the  guar- 
dian *  must  not  buy  land  with  the  infant's  money  with-  *  467 
out  the  direction  of  chancery.  And  having  obtained 
permission  to  do  so,  he  is  bound  to  exercise  good  faith  and 
seek  his  ward's  best  interests.^ 

But  a  practical  conversion  takes  place  where  the  guardian 
uses  the  trust  money  in  paying  off  the  ward's  mortgage  debts. 

'  Roche  V.  Chaplin,  1  Bailey,  419. 

2  French  v.  Thompson,  6  Vt.  54. 

3  Macphers.  Inf.  278  et  se(j. ;  2  Kent  Com.  228-230,  and  notes  ;  Story  Eq. 
Juris.  §  1357  ;  Witter  v.  Witter,  3  P.  Wms.  101 ;  Ex  parte  Piiillips,  19  Ves.  122  ; 
Skelton  v.  Ordinary,  32  Geo.  2tJ6 ;  Ware  v.  Polhill,  11  Ves.  278;  Holbruok  v. 
Brooks,  33  Conn.  347;  Royer's  Appeal,  11  Penn.  St.  36;  Ex  parte  Crutchfield, 
3  Yerg.  330  ;  Dorr,  Petitioner,  Walker  Eq.  145  ;  Kendall  v.  Miller,  9  Cal.  591  ; 
Matter  of  Mason,  Hook.  122.  See  Harris  v.  Harris,  0  Gill  &  Johns.  Ill  ;  Davis' 
Appeal,  60  Penn.  St.  118. 

32  [  407  ] 


*  467  GUARDIAN  AND  WARD. 

He  is  bound  to  apply  rents  and  profits  in  keeping  down  the 
interest  on  such  encumhrances  ;  nor  can  he,  in  general,  invest 
personal  estate  more  judiciously  than  in  freeing  the  land  from 
debt  altogether.^  An  order  of  court  is  not  necessary  in  such 
cases,  nor  for  judgment  debts,  but  it  would  be  required  for 
discharging  other  than  direct  encumbrances.^  So,  too,  a 
guardian  may  redeem  his  ward's  estate  from  foreclosure.^ 
The  statutes  of  most  American  States  have  greatly  altered 
the  law  on  the  subject  of  conversions,  so  as  not  only  to  facili- 
tate the  sale  of  real  estate  belonging  to  cestuis  que  trust,  but 
to  enable  their  fiduciaries,  under  judicial  authority,  to  make 
specific  performance  of  contracts  and  to  release  vested  and 
contingent  interests.'^ 

Where,  at  the  time  the  court  orders  the  sale  or  purchase  of 
real  estate  by  the  guardian,  the  conversion  was  beneficial  to 
the  ward,  it  would  appear  that  the  guardian  is  not  made  lia- 
ble if  such  conversion  afterwards  turns  out  injurious.^  But 
whether  an  order  of  court  would  protect  conduct  notoriously 
imprudent,  as  if  there  should  be  a  sudden  and  marked  decline 
in  the  value  of  the  land  from  some  cause  not  within  the  con- 
sideration of  the  court  at  the  time  of  issuing  the  order,  and 
such  as  would  have  been  sufficient  for  its  revocation,  and  the 
guardian,  nevertheless,  goes  on  and  makes  the  sale  at  a  sacri- 
fice, may  well  be  doubted.*^ 

*  468        *  Where  a  guardian  purchases,  on  behalf  of  his  ward, 

a  house  and  lot  expressly  subject  to  a  mortgage,  he 
becomes  personally  liable  for  the  amount  of  the  unpaid  debt ; 
even  though  he  had  been  authorized  by  the  court  to  make 
the  purchase.  But  the  court  will  afford  him  relief  from  the 
ward's  estate.'^  In  an  English  case,  where  a  guardian  bor- 
rowed money  to  pay  off  encumbrances  on  the  ward's  estate 
and  promised  to  give   the  lender  security,  but  died  before 

1  Macphers.  Inf.  285 ;  March  i'.  Bennett,  1  Vern.  428 ;  Jennings  v.  Looks,  2 
P.  Wms.  278. 

2  Palmes  v.  Danby,  Prec.  in  Cli.  137;  s.  c.  1  Eq.  Ab.  261;  Waters  r.Ebral, 
2  Vern.  606. 

8  Botham  v  M'Intier,  19  Pick.  346  ;  Marvin  v.  Schilling,  12  Mich.  356. 
•*  See  next  chapter.  5  Bonsall's  Case,  1  Eawle,  266. 

6  See  Harding  v.  Lamed,  4  Allen,  426. 

1  Woodward's  Appeal,  38  Penn.  St.  322 ;  Low  v.  Purdy,  2  Lans.  422, 
[498] 


RIGHTS   AND   DUTIES   OF   GUARDIAN.  *  468 

doing  so,  the  court  refused  to  decree  specific  performance  ; 
though  the  lender's  money  had  been  duly  applied  for  that 
purpose.^  Here,  however,  there  had  been  no  written  con- 
tract. 

It  is  a  general  principle  that  acts  done  by  a  guardian  with- 
out authority  will  be  protected,  and  -will  bind  the  infant,  if 
they  turn  out  eventually  beneficial  to  the  latter  ;  but  the 
guardian  does  such  acts  at  his  own  peril.  The  transaction 
will  perhaps  avail  as  between  the  guardian  and  third  j^ar- 
ties  ;  but  the  infant,  on  arriving  at  majority,  may  usually 
disaffirm  it  altogether,  and  require  the  guardian  to  jjlace  him 
in  statu  quo?  This  risk  is  restricted  to  unauthorized  acts  ; 
for  no  guardian  can  be  an  infallible  judge  of  what  is  bene- 
ficial to  his  ward ;  and  to  make  him  liable  in  ordinary  cases, 
beyond  the  limits  of  good  faith  and  a  sound  discretion,  would 
be  intolerable.  Hence,  as  judicial  control  becomes  relaxed, 
the  guardian's  unauthorized  acts  may  fairl}^  be  considered  as 
lessening  in  number  and  importance. 

It  is  to  be  observed,  however,  that  chancery  not  only  pun- 
ishes corruption,  but  treats  with  suspicion  all  acts  and  cir- 
cumstances evincing  a  disposition  on  the  guardian's  part  to 
derive  undue  advantage  from  his  position.  This  rule  is  appli- 
cable to  trustees  in  general.  The  trust  should  be  managed 
exclusively  in  the  interest  of  the  cestui  que  trust ;  or,  in  case 
of  guardianship,  for  the  ward's  benefit.  The  guardian  can- 
not reap  any  benefit  from  the  use  of  the  ward's  money.  He 
cannot  act  for  his  own  benefit  in  any  contract  or  pur- 
chase or  sale  as  to  the  subject  of  *  the  trust.  If  he  *  469 
purchases  in  his  character  as  guardian,  he  presump- 
tively uses  his  ward's  funds  for  that  purpose.  If  he  settles  a 
debt  upon  beneficial  terms,  or  purchases  it  at  a  discount,  the 
advantage  is  to  accrue  entirely  to  the  ward's  estate.^  He 
cannot  be  permitted  to  place  himself  in  an  attitude  of  hos- 

1  Hooper  v.  Eyles,  2  Vern.  480.  2  Macphers.  Inf.  339  ;  infra,  p.  509. 

3  White  V.  Parker,  8  Barb.  48  ;  2  Kent  Com.  229  ;  Diettericli  v.  Heft,  5  Barr, 
87  ;  Clowes  v.  Van  Antwerp,  4  Barb.  416;  Lefevre  v.  Laraway,  22  Barb.  168; 
Kennaird  v.  Adams,  11  B.  Monr.  102;  Sparliawk  v.  Allen,  1  Foster  (N.  H.),  9; 
Heard  v.  Daniel,  26  Miss.  451 ;  Jennings  »'.  Kee,  5  Ind.  257. 

[  ^i*9  J 


*469  GUARDIAN  AND   WARD. 

tility  to  his  ward,  or  derive  any  benefit  from  the  latter's  loss.^ 
Wherever  he  abuses  the  confidence  reposed  in  him,  he  Avill  be 
held  to  a  strict  accountability. 

Where  the  guardian  purchases  for  himself  at  sales  of  his 
ward's  property,  his  conduct  will  be  closely  scrutinized.  But 
where  no  fraud  appears,  and  the  sale  appears  beneficial  to  the 
ward,  the  more  reasonable  doctrine  is  that  the  transaction  is 
sustainable  in  equity,  subject  to  the  ward's  subsequent  elec- 
tion, on  reaching  majority,  to  disaffirm  the  sale.  The  guar- 
dian meanwhile  takes  the  legal  title  ;  more  especially  if  the 
sale  Avas  conducted  through  a  third  party,  who  afterwards 
conveyed  to  him.^ 

The  guardian  is  not  to  apply  property  exempt  from  attach- 
ment or  execution  in  satisfaction  of  his  ward's  debts.^  He 
must  not  mingle  his  own  funds  with  those  of  his  ward. 
Where  there  are  several  wards  he  must  allot  to  each  his  due 
share  of  expenses  and  profits.  And  if  he  becomes  insolvent, 
and  gives  the  bulk  of  the  property  received  by  him  to  one, 
and  little  or  nothing  to  the  others,  equity  will  still  treat  the 
property  as  belonging  to  the  wards  in  their  proper  shares.^ 

So  far  as  the  guardian  acts  within  the  scope  of  his  powers 
he  is  bound  only  to  the  observance  of  fidelity,  and  such  dili- 
gence and  prudence  as  men  display  in  the  ordinary 
*  4T0  affairs  of  *  life.  And  in  absence  of  misconduct  his 
acts  are  liberally  regarded.  He  is  not  liable  for  invest- 
ments carefully  made,  which  afterwards  jDrove  worthless. 
Nor  is  he  responsible  for  funds  of  which  he  was  robbed  with- 
out his  fault.^  But  for  any  fraudulent  transaction  to  which 
he  lends  himself  he  must  suffer  the  consequences.^  And  if 
by  his  negligence  the  estate  has  suffered  loss,  he  must  make 

1  Mann  v.  McDonald,  10  Humph.  275. 

2  Ex  parle  Lacey,  6  Ves.  625 ;  Lefevre  v.  Laraway,  22  Barb.  168;  Chorpen- 
ning's  Appeal,  32  Penn.  St.  315;  Hoskins  v.  Wilson,  4  Dev.  &  Batt.  243;  Black- 
more  V.  Shelby,  8  Humph.  439;  Hudson  v.  Helmes,  23  Ala.  585.  But  see  Beal 
V.  Harmon,  38  Mis.  435.  See  infra,  ch.  9.  In  Missouri,  under  the  Spanish  laws, 
the  guardian  might  purchase  lands  of  his  ward  by  the  court's  permission. 
M'Nair  v.  Hunt,  5  Mis.  300. 

3  Fuller  V.  Wing,  5  Sliep.  222. 

4  Case  of  Hampton,  17  S.  &  R.  144. 

5  Furman  v.  Coe,  1  Caines'  Gas.  96 ;  Atkinson  v.  Whitehead,  66  N.  C.  296. 

6  McCahan's  Appeal,  7  Barr,  56. 

[600] 


RIGHTS  AND   DUTIES   OF   GUAKDIAN.  *  470 

good  the  deficiency.^  What  acts  amount  to  fraud  or  culpa- 
ble negligence  will  depend  upon  circumstances.  Ignorance  of 
duty  is  equivalent  to  misconduct,  where  the  ward's  interests 
suffer  by  it.^ 

The  guardian's  responsibility  extends  only  to  such  property 
of  his  ward  as  is  accessible  to  him.  But  having  once  come 
into  possession,  or  gained  knowledge  of  his  right  of  posses- 
sion, it  is  his  duty  to  account  for  the  property  ;  for  the  law 
then  imposes  upon  him  b,  prima  facie  liability.^  And  the  fact 
that  money  was  collected  in  another  State  beyond  his  juris- 
diction cannot  affect  his  obligation  to  account. 

Courts  of  equity  follow  the  ward's  property  whenever 
wrongfully  disposed  of ;  and  any  person  in  whose  hands  it  is 
found  will  be  held  as  trustee,  if  it  can  be  shown  that  it  came 
into  his  possession  with  notice  of  the  trust.^  And  legacies 
charged  on  land  and  payable  to  the  ward  on  reaching  major- 
ity, though  paid  meanwhile  to  his  guardian,  remain  a  lien  on 
the  land  until  actually  received  by  the  ward.^  Innocent 
third  j)arties  are  not  affected  by  the  guardian's  fraud.  But 
where  they  neglect  to  make  reasonable  inquiries  as  to  facts 
which  ought  to  have  raised  suspicion  in  their  minds,  they 
may  have  to  suffer  for  their  imprudence.'' 

*  The  guardian  has  the  management  and  control  of  his  *  471 
ward's  real  estate  so  long  as  his  general  authority  lasts. 

It  is  his  duty  to  collect  the  rents  for  the  benefit  of  his  ward. 
He  may  avow  for  damage  feasant^  sue  for  non-payment  of 
rent,  and  bring  trespass  and  ejectment  in  his  own  name. 
This  was  the  common-law  rule  as  to  guardians  in  socage,  and 
it  still  applies  to  testamentary,  chancery,  and  probate  guar- 
dians. The  recognized  principle  is  that  such  guardians  have 
an  authority  coupled  with  an  interest,  and  not  a  bare  author- 

1  2  Kent  Com.  230;  Glover  v.  Glover,  1  McMull.  153;  Royer's  Appeal,  11 
Penn.  St.  36 ;  Wynn  v.  Benbury,  4  Jones  Eq.  395. 

2  Nicholson's  Appeal,  20  Penn.  St.  50. 

3  Betlmne  v.  Green,  27  Geo.  56 ;  Howell  v.  Williamson,  14  Ala.  419  ;  Martin 
V.  Stevens,  30  Miss.  159. 

*  Carpenter  v.  McBride,  3  Fla.  292. 

*  Cato  V.  Gentry,  28  Geo.  327. 

6  Gale  V.  Wells,  12  Barb.  81 ;  Ilimtcr  v.  Lawrence,  11  Gratt.  111. 

[  501  ] 


*  471  GUAKDIAN   AND   WARD. 

ity.^  A  guardian  makes  himself  personally  liable  where  he 
negligently  permits  others  to  collect  the  rents,  or  occupies  the 
premises  himself,  or  suffers  them  to  remain  unoccupied.^ 

The  guardian  may  also  lease  his  ward's  lands.  But  his  de- 
mise cannot  last  for  a  longer  period  than  the  law  allows  for 
the  continuance  of  his  trust.  And  it  will  determine  upon  the 
ward's  death  in  any  event.  A  lease  made  by  a  guardian,  ex- 
tending beyond  the  minority  of  his  ward,  was  once  considered 
void  ;  but  the  modern  rule  treats  such  leases  as  void  only  for 
the  excess  at  the  election  of  the  ward.^  The  same  principles 
apply  to  guardians  of  insane  persons  and  spendthrifts.  And 
the  rule  embraces  assignments  of  the  ward's  leases.*  The 
father,  as  natural  guardian,  cannot  lease  the  land  of  his  child ; 
nor  can  the  mother ;  nor  can  any  mere  custodian  of  the  per- 
son.^ So,  too,  guardians  may  take  premises  on  lease.  And 
though  the  words  "A.  and  B.,  guardians  "  of  certain  minors, 
are  used  in  a  lease,  the  guardians  are  personally  bound  to  the 
lessor  to  pay  the  rent.^ 

Where  a  guardian  cultivates  his  ward's  farm  instead  of 
letting  it  out,  he  is  bound  to  cultivate  as  a  prudent  farmer 
would  his  own  land ;  otherwise  the  loss  by  depreciation  of 
the  2^roperty  in  value  must  be  made  good  by  him.'''  And  for 
losses  occurring  through  his  bad  management  of  his  ward's 
real  estate,  he  cannot  expect  to  be  recompensed.^ 

*  472        *  The  guardian  may  grant  an  easement  in  his  ward's 

lands  ;  but  it  is  of  no  avail  beyond  the  limit  of  his  guar- 
dianship.^    He  may  authorize  the  cutting  of  standing  timber, 

1  Shaw  V.  Shaw,  Vera.  &  Scriv.  607  ;  Bacon  v.  Taylor,  Kirby,  368  ;  2  Kent 
Com.  -228 ;  Pond  v.  Curtiss,  7  Wend.  45 ;  Huff  v.  Walker,  1  Cart.  193.  And  see 
O'Hara  v.  Shepherd,  3  Md.  Ch.  306. 

2  Wills'  Appeal,  22  Penn.  St.  325 ;  Clark  v.  Burnside,  15  III.  62.  Hughes' 
Appeal,  53  Penn.  St.  500. 

3  Bac.  Abr.  Leases  I.  ;  2  Kent  Com.  228 ;  1  Washb.  Real  Prop.  307 ;  Rex  v. 
Oakley,  10  East,  494  ;  Putnam  v.  Ritchie,  6  Paige,  390  ;  Field  v.  Scliietfelin,  7 
Johns.  Ch.  150 ;  Hedges  v.  Hiker,  5  Johns.  Ch.  163  ;  Richardson  v.  Richardson, 
49  Mis.  29. 

4  Ross  V.  Gill,  4  Call,  250. 

5  Anderson  v.  Darby,  1  N.  &,  McC.  369 ;  Magruder  v.  Peter,  4  Gill  &  Johns. 
823 ;  Ross  v.  Cobb,  9  Yerg.  463.     See  Drury  v.  Conner,  1  Har.  &  G.  220. 

6  Hannen  v.  Ewalt,  18  Penn.  St.  9.     See  Snook  v.  Sutton,  5  Halst.  133. 

1  Willis  V.  Fox,  25  Wis.  646.  8  Harding  v.  Lamed,  4  Alien,  426. 

9  Watkins  v.  Peck,  13  N.  H.  360 ;  Johnson  v.  Carter,  16  Mass.  443. 

[502] 


EIGHTS   AND   DUTIES   OF   GUARDIAN.  *4'72 

and  allow  others  to  cany  it  away.^  But  his  license  should  be 
given  in  all  cases  for  his  ward's  benefit.  And  if  trees  are  cut 
and  carried  away  by  his  permission,  so  that  trespass  cannot 
be  maintained,  he  must  make  compensation  to  the  ward.^ 

Guardians  may  assign  dower.  And  it  seems  that  the  guar- 
dian's assignment  will  bind  the  heir,  although  Blackstone  and 
Fitzherbert  state  the  law  otherwise.'^  The  deed  of  a  married 
woman,  guardian  of  infants,  in  such  capacity,  does  not  convey 
her  right  of  dower.^  Guardians  may  also  institute  proceed- 
ings for  partition.  Such  proceedings,  in  England,  should  be 
by  bill  in  equity.^  In  this  country,  the  subject  is  commonly 
regulated  by  statute.  A  guardian  may  purchase  for  his  ward, 
who  is  one  of  the  heirs,  such  portion  of  an  estate  as  the  other 
heirs  refused  to  take  on  partition,  and  the  court  ordered  to  be 
sold.6 

From  what  has  been  already  said,  it  appears  clear  that  the 
guardian  may  execute  all  the  deeds  and  other  writings  neces- 
sary to  the  fulfilment  of  his  trust.  But  such  instruments 
should  be  signed  in  the  name  of  his  ward."  On  the  same 
principle  that  agents  and  trustees  are  personally  bound  when 
they  exceed  their  authority,  a  guardian  makes  himself  person- 
ally liable  for  stipulations  which  he  has  no  right  to  insert  in 
a  deed,  and  for  authorized  covenants,  so  badly  worded  that 
they  fail  to  bind  the  ward's  estate ;  but  not,  it  would  appear, 
for  imjilied  covenants  merely.^  Where  a  married 
woman  has  executed  *  a  deed  as  guardian,  it  would  *  473 
seem,  on  principle,  that  the  joinder  of  her  husband  is 
unnecessary.^ 

It  is  the  guardian's  duty  to  keep  the  ward's  premises  in 

1  Fonbl.  Eq.  Tr.  82,  n. ;  Thompson  v.  Boardman,  1  Vt.  367  ;  Bond  v.  Lock- 
wood,  33  111.  212. 

2  Truss  V.  Old,  6  Rand.  556. 

3  2  Bl.  Com.  136;  Fitzh.  N.  B.  348;  1  Waslib.  Real  Prop.  226;  Jones  v. 
Brewer,  1  Pick.  314  ;  Young  v.  Tarbell,  37  Me.  509  ;  Curtis  v.  Hobart,  41  Me. 
230;  Boyers  v.  Newbanks,  2  Ind.  388 ;  Clark  v.  Burnside,  15  111.  62. 

4  Jones  y.  Hollopeter,  10  S.  &  R.  326. 

5  Macphers.  Inf.  340. 

6  Bowman's  Appeal,  3  Watts,  369. 

7  Hunter  v.  Dashwood,  2  Edw.  Ch.  415. 

8  Whiting  r.  Dewey,  15  Pick.  428;  Webster  v.  Conley,  46  111.  13. 

9  Palmer  v.  Oakley,  2  Doug.  433. 

[  503  ] 


*  473  GUARDIAN  AND    WARD. 

repair,  and  he  may  use  cash  in  his  hands  for  that  purpose 
within  reasonable  hmits.  But  he  cannot  build  or  make  ex- 
pensive permanent  improvements  without  a  previous  order 
from  a  court  of  equity,  which  is  to  he  construed  strictly.^ 
And  where  he  advances  money  for  such  purposes,  without 
first  obtaining  an  order,  it  Avould  appear  that  he  is  without  a 
remedy .2  But  the  court  will  sometimes  protect  such  expen- 
ditures, on  the  ground  that  the  ward  has  received  a  benefit 
thereby.^  And  this  seems  the  more  reasonable  doctrine, 
though  not  clearly  recognized  in  this  country.  Authority 
granted  to  expend  a  certain  sum  for  this  purpose,  is  no  au- 
thority to  exceed  that  sum,  though  it  should  prove  inade- 
quate.^ Nor  has  the  builder  any  lien  upon  the  ward's  real 
estate  for  such  excess.^ 

Stock  and  farming  utensils  on  the  ward's  farm  are,  prima 
facie,  the  ward's  property,  as  against  a  guardian  who  has  car- 
ried on  the  farm  in  person.^  But  this  does  not  exempt  from 
attachment  property  of  the  guardian  which  he  purchases  and 
places  upon  the  ward's  lands ;  for  the  question  of  title  is 
always  open  to  proof." 

The  guardian's  power  to  borrow  money  on  a  mortgage  of 
his  Avard's  lands  and  to  create  liens  upon  it  generally  is 
regarded  with  very  little  favor.  He  could  hardly  make  the 
mortgage  operate  beyond  the  minority  of  his  ward,  at  any 
rate,  if  the  ward  on  reaching  majority  elected  to  disaffirm 
it ;  and  his  only  safe  course  would  be  to  secure  the  previous 
permission  of  the  court,  which  American  statutes  generally 
permit  to  be  done  on  special  proceedings.^ 

As  to  personal  estate,  one  of  the  first  duties  of  all  trustees 
is  to  place  the  property  in  a  state  of  security.     Guardians  in 

1  Payne  v.  Stone,  7  S.  &  M.  867  ;  Miller's  Estate,  1  Penn.  St.  326.  And  see 
Powell  V.  Nortli,  3  Ind.  392. 

2  Hassard  v.  Rowe,  11  Barb.  22 ;  Bellinger  v.  Shafer,  2  Sandf.  Ch.  293. 

3  See  Macphers.  Inf.  295 ;  1  Atk.  489  ;  Hood  v.  Bridport,  11  E.  L.  &  Eq.  271 ; 
Jackson  v.  Jackson,  1  Gratt.  143. 

*  Snodgrass'  Appeal,  37  Penn.  St.  377. 

5  Guy  V.  DuUprey,  16  Cal.  195. 

6  Tenney  v.  Evans,  11  N.  H.  346.  T  lb.  14  N.  H.  343. 
8  Merritt  v.  Simpson,  41  111.  391 ;  Lovelace  r.  Smith,  39  Geo.  130. 

[504] 


RIGHTS  AND   DUTIES   OF   GUARDIAN.  *  473 

this  respect  are  treated  on  the  same  footing  as  other  trustees. 
Choses  in  action  should  be  reduced  to  possession  without  un- 
necessary delay.i  Money  temporarily  in  the  guar- 
dian's hands  *  should  be  deposited  in  some  responsible  *  474 
bank.  But  wherever  placed  and  however  invested,  the 
trust  funds  should  be  separated,  by  distinguishing  marks,  from 
his  private  property ;  exceptions  occurring,  however,  in  some 
cases  of  a  temporary  deposit,  as  for  instance  where  the  money 
is  left  in  one's  iron  safe  with  his  private  valuable  papers  for 
no  unreasonable  length  of  time  and  under  circumstances  im- 
puting to  him  no  want  of  ordinary  prudence  and  diligence, 
either  in  placing  and  keeping  it  there  in  that  condition,  or  in 
pursuing  the  thief  who  took  it  out.  Otherwise,  he  would  be 
personally  liable  for  loss.  Hence,  if  a  guardian  deposits 
money  in  a  bank  to  his  own  account,  and  the  bank  after- 
wards fails,  he  must  suffer  the  consequences.^  So  if  he  pur- 
chases stock  or  takes  a  promissory  note  in  his  own  name  it 
will  be  treated  as  his  own  ;  but  not,  necessarily,  to  the  ward's 
prejudice,  for  it  might  otherwise  be  clearly  identified  and 
traced  as  the  ward's  property.^  And  it  would  appear  that  he 
is  not  permitted  in  such  cases  to  show  by  other  evidence  an 
intent  to  charge  his  ward ;  for  the  act  itself  is  conclusive 
against  him.* 

The  guardian  may  receive  money  secured  to  the  ward  by 
mortgage,  and  discharge  the  mortgage,  before,  at,  or  after 
maturity,  in  the  exercise  of  due  prudence  and  foresight.^  It 
would  appear  too,  that,  in  the  absence  of  any  statute  limiting 
his  powers,  he  has,  as  incidental  to  his  office  and  duties, 
the  power  to  sell  his  ward's  personal  property.^ 

1  See  Hill  Trustees,  447,  and  cases  cited  ;  Caffrey  v.  Darby,  6  Ves.  488  ; 
Powell  V.  Evans,  5  Ves.  839  ;  Lewson  v.  Copeland,  2  Bro.  C.  C.  156  ;  Tebbs  v. 
Carpenter,  1  :Madd.  298 ;  Caney  v.  Bond,  6  Beav.  486. 

2  Wren  v.  Kirton,  11  Ves.  377  ;  Fletcher  r.  Walker,  3  Madd.  73;  McDonnell 
V.  Harding,  7  Sim.  178;  Routh  v.  Howell,  3  Ves.  565;  Matthews  v.  Brise,  6 
Beav.  2.39 ;  Atkinson  v.  Whitehead,  66  N.  C.  296. 

3  Jenkins  v.  Walter,  8  Gill  &  Johns.  218 ;  White  v.  Parker,  8  Barb.  48 ; 
Knowlton  v.  Bradley,  17  N.  H.  458;  Brown  v.  Dunham,  11  Gray,  42;  Beasley 
V.  Watson,  41  Ala.  2o4. 

*  Brisbane  v.  Tiie  Bank,  4  Watts,  92  ;  Stanley's  Appeal,  8  Barr,  431. 

5  Chapman  v.  Tibbits,  33  N.  Y.  289  ;  Smith  v.  Dibrell,  31  Te.\.  239. 

6  See  Wallace  v.  Holmes,  9  Blatchf.  65 ;  supra,  p.  466. 

[505] 


*  474  GUARDIAN  AND   WARD. 

In  collecting  outstanding  debts  a  reasonable  time  is  to  be 
allowed  the  guardian.  Ordinary  prudence  and  diligence  is 
the  rule ;  and  for  culpable  negligence  subjecting  the  estate  of 
his  ward  to  loss  he  may  make  himself  personally  liable,  even 
though  the  demand  be  against  a  "person  residing  in  another 
State. ^  He  is  not  to  sue  in  all  cases  where  ordinary  modes  of 
collection  fail ;  for  the  expenses  of  litigation  are  to  be  weighed 
against  the  chances  of  realizing  a  benefit.  What  is  a  reason- 
able time  will  depend  upon  circumstances.  It  is  his  duty  to 
contest  all  improper  claims,  though  presented  by  the  surviv- 
ing parent.^  Nor  can  he  with  safety  permit  the  administrator 
of  the  estate  of  his  ward's  father  to  control  property  of  which 
he  is  the  legal  custodian.  And  he  must  hold  an  administrator 
to  account  in  all  cases.^  If  a  guardian  takes  notes  of  third 
persons  in  payment  of  an  indebtedness  to  his  ward,  and  after- 
wards receives  the  money  upon  the  notes,  and  appropriates 
the  money  as  guardian,  the  payment  is  sufficient.^  But  he  is 
not  personally  liable,  in  every  case,  on  a  note  received  by  him 
with   other  assets,  which  turns  out  afterwards  to  be 

*  475    worthless,  on  *  the  ground  that  it  might  have  been 

collected  when  transferred  to  him  ;  for  a  guardian's 
liability  has  its  reasonable  limits.^  And  money  paid  to  a 
guardian  by  mistake  cannot  be  recovered  again,  if  he  has 
paid  it  out  before  receiving  notice  of  the  mistake.^ 

Like  all  other  trustees,  the  guardian  is  bound  to  make 
his  ward's  funds  productive.  He  should  see  that  the  capital 
which  comes  to  his  hands  is  well  secured ;  procure  a  change 
of  securities  whenever  necessary  ;  and  invest  surplus  moneys 
where  they  may  di-aw  interest.  For  funds  accruing  during 
the  continuance  of  his  trust  he  is  allowed  a  reasonable  time 
for  making  his  investment,  usually  limited  to  six  months, 
though  in  some  cases  a  year  is  allowed,  and  in  others  only 
three   months  ;  and  he   cannot  suffer  the  ward's  money  to 

1  Potter  V.  Hiscox,  30  Conn.  508.  2  Ex  parte  Guernsey,  21  111.  443. 

3  Wills's  Appeal,  22  Penn.  St.  825;  Clark  v.  Tompkins,  1  S.  C.  n.  s.  119. 
<  Jones  V.  Jones,  20  Iowa,  388. 

5  Stem's  Appeal,  6  Whart.  472 ;  Waring  v.  Darnall,  10  Gill  &  Johns.  127. 

6  Massey  v.  Massey,  2  HiU  Ch.  492. 

[506] 


EIGHTS   AND   DUTIES   OF   GUARDIAN.  *  475 

remain  longer  idle.^  But  he  may  keep  a  suitable  suij)lus  on 
hand  for  current  and  contingent  expenses  ;  also  sums  too 
small  to  be  wisely  invested.^  And  family  relics  and  orna- 
ments, household  furniture  and  farm  stock,  are  generally 
exempted  from  the  rule  of  investment. 

The  investment  of  the  trust  funds  is  therefore  one  of  the 
most  important  duties  of  a  guardian,  both  as  respects  the 
interests  of  his  ward  and  his  own  security.  Testamentary 
guardians,  like  trustees  under  deeds  of  trust,  should  follow 
the  direction  of  the  testator  in  making  investments  ;  and  for 
losses  arising  from  such  course  they  are  not  responsible.  But 
their  powers  are  to  be  construed  strictly  ;  and  where  the  will 
is  silent  or  the  directions  are  in  general  terms,  or  manifestly 
improper,  chancery  rules  of  investment  must  prevail.^ 

In  England,  the  estates  of  infants  and  persons  of  un- 
sound *  mind  under  chancery  guardianship  are  usually  *  476 
controlled  by  the  court.  The  general  practice  is  to  get 
in  all  the  money  due  the  ward  and  invest  it  in  the  public  funds. 
For  this  purpose  a  receiver  is  appointed,  if  necessary.  The 
court  will  not  allow  the  ward's  money  to  be  left  out  on  per- 
sonal security,  without  reference  to  a  master  as  to  the  suffi- 
ciency of  the  security  ;  nor  upon  judgment  security  ;  but, 
where  advantageously  invested  on  the  security  of  real  estate, 
in  Great  Britain,  the  court  will  not  disturb  the  investment. 
The  statute  of  4  and  5  William  IV.  c.  29,  authorizes  invest- 
ments on  real  security  in  Ireland,  under  the  direction  of  the 
English  Court  of  Chancery.* 

In  this  country,  the  management  of  the  personal  estate  of 
infants  and  others  is  usually  left  to  their  guardian,  subject  to 
recognized  principles  of  law  which  he  is  bound  to  follow. 
There  are  statutes  in  many  States  Avhich  authorize  the  invest- 
ment by  fiduciaries  only  in  particular  kinds  of  securities.  In 
others,  it  is  provided  that  investments  may  be  made  in  any 

1  Worrell's  Appeal,  23  Penn.  St.  44  ;  White  v.  Parker,  8  Barb  48 ;  Karr  v. 
Karr,  G  Dana,  3  ;  Pettus  v.  Sutton,  10  Rich.  Eq.  356  ;  Owen  v.  Peebles,  42  Ala. 
338;  infra,  p.  477. 

2  Baker  v.  Richards,  8  S.  &  R.  12;  Knowlton  v.  Bradley,  17  N.  H.  458. 

»  Macphers.  Inf.  200.     And  see  Hill  Trustees,  368-384,  and  Wharton's  notes. 
*  Macphers.  Inf.  266;  Hill  Trustees,  395;  Norbury  v.  Norbury,  4  Madd.  191. 

[507] 


*  476  GUARDIAN  AND  WAED. 

manner  for  the  interest  of  all  concerned.^  It  is  the  general 
rule  that  either  public  securities  or  real  securities  are  to  be 
preferred .2  Investments  in  stock  of  the  United  States,  or 
of  the  State  having  jurisdiction  of  the  ward,  are  doubtless 
proper;  so,  mortgage  investments  on  first-class  property 
within  the  State,  and  city  and  town  securities,  are  frequently 
designated  as  suitable  investments.  But  the  stock  of  railway, 
navigation,  and  other  incorporated  companies,  whose  stability 
is  uncertain,  are  unsuitable.^  For  small  sums  of  money  sav- 
ings banks  of  good  repute  may  be  found  convenient.  United 
States  Bank  stock  has  been  considered  a  proper  investment.* 
And  while,  in  some  States,  fiduciary  officers  are  strictly  limited 
in  their  power  of  investments ;  in  others,  as  Massachu- 

*  477    setts,  there  is  no  favored  stock,  and  they  are  only  *  bound 

to  exercise  reasonable  prudence  and  sound  faith.^  But 
for  losses  which  are  without  the  protection  of  this  rule,  the 
guardian  or  other  trustee  is  always  personally  responsible. 
And  loans  on  the  credit  of  a  single  individual,  or  a  single 
firm,  without  other  security,  or  with  very  doubtful  security, 
are  not  sustained.^  Nor  investments  in  indorsed  notes  of 
parties  of  bad  or  douljtful  standing ; '  though  the  rule  would 
be  otherwise  if  their  credit  is  good.     Loans  to  individuals 

1  Gary  v.  Cannon,  3  Ired.  Eq.  64. 

2  Gray  v.  Fox,  Saxt.  259 ;  Worrell's  Appeal,  9  Barr,  508 ;  Nance  v.  Nance, 
1  S.  C.  N-.  s.  209. 

3  Worrell's  Appeal,  23  Penn.  St.  44  ;  Allen  v.  Gaillard,  1  S.  C.  n.  s.  279  ; 
French  v.  Currier,  47  N.  H.  88.  There  are  a  number  of  recent  decisions  in 
North  Carolina,  South  Carolina,  Alabama,  and  other  Southern  States,  of  tem- 
porary importance,  which  relate  to  investments  in  what  are  known  as  "  Confed- 
erate securities  "  and  settlements  by  a  guardian  in  the  so-called  "  Confederate 
money."  Among  these  see  Powell  v.  Boon,  43  Ala.  459  ;  White  v.  Nesbit,  21 
La.  Ann.  600;  Brand  v.  Abbott,  42  Ala.  499;  Sudderth  v.  McCombs,  65  N.  C. 
186;  Coffin  v.  Bramlitt,  42  Miss.  194. 

4  Boggs  V.  Adger,  4  Rich.  Eq.  408 ;  contra,  Smith  v.  Smith,  7  J.  J.  Marsh. 
238.     And  see  Watson  v.  Stone,  40  Ala.  451. 

5  Konigmaclier's  Appeal,  1  Penn.  207  ;  Lovell  v.  Minot,  20  Pick.  116  ;  Nance 
V.  Nance,  1  S.  C.  n.  s.  209  ;  Swartwout  v.  Oaks,  52  Barb.  622. 

e  Smith  i-.  Smith,  4  Jolms.  Ch.  281  ;  Clay  v.  Clay,  3  Met.  (Ky.)  548  ;  Boyett 
V.  Hurst,  1  Jones  Eq.  166  ;  Clark  v.  Garfield,  8  Allen,  427  ;  Gilbert  v.  Guptill,  34 
111.  112. 

■7  Harding  v.  Lamed,  4  Allen,  426  ;  Fletcher  v.  Fletcher,  29  Vt.  98  ;  Coving- 
ton c.  Leak,  65  N.  C.  594 ;  Hurdle  v.  Leath,  63  N.  C.  597. 
[508] 


RIGHTS  AND   DUTIES   OF   GUARDIAN.  * -177 

with  good  collateral  security  are  upheld. ^  Speculative  in- 
vestments may  be  made  by  prudent  men  in  their  own  busi- 
ness, but  not  by  fiduciaries  with  their  trust  funds.  If  a 
loan  by  the  guardian  be  sanctioned  by  the  court  he  is  not 
liable  for  loss,  unless  it  arises  from  his  subsequent  neglect.^ 
But  the  assent  of  the  court  must  be  in  writing  and  of  record  ; 
not  given  by  parol. 

Negligence  and  unreasonable  delay  in  the  investment  of 
trust  funds  is  a  breach  of  official  duty  for  which  the  trustee 
is  held  answerable.  And  where  the  guardian  suffers  cash 
balances  to  remain  idle  in  his  hands,  or  mingles  the  ward's 
money  with  his  own,  he  is  chargeable  with  interest,  and  in 
case  of  misconduct  with  compound  interest.^  It  remains  a 
disputed  question  whether  the  guardian  should  be  charged 
with  compound  interest  for  mere  delinquency ;  but  it  seems 
that  he  should  not.  In  some  cases  a  trustee  has  been  so 
charged,  because  the  trusts  under  which  he  acted  required 
him  to  place  the  fund  where  more  than  simple  interest  would 
have  accumulated.  In  others,  the  principle  seems  to  have 
been  to  exact  it  as  a  penalty  for  his  misconduct  in  deriv- 
ing, or  seeking  to  derive,  some  j)ecuniary  *  advantage  *  478 
from  the  trust  money.  In  all  cases  courts  of  chancery 
have  exercised  a  liberal  discretion,  according  to  the  circum- 
stances.* The  rule  announced  by  Ch:mcellor  Kent  cannot, 
therefore,  be  considered  quite  accurate.^ 

Where  a  guardian  speculates  with  his  ward's  funds,  or  em- 

1  Lovell  V.  Minot,  20  Pick.  116. 

'i  O'Hara  v.  Sheplierd,  3  iMd.  Ch.  306;  Bryant  v.  Craig,  12  Ala.  354;  Car- 
lisle V.  Carlysle,  10  Md.  440. 

3  Barney  v.  Saunders,  16  How.  535;  Swindall  v.  Swindall,  8  Ired.  Eq.  285; 
Knott  V.  Cottee,  13  E.  L.  &  Eq.  304  ;  Stark  i-.  Gamble,  43  N.  H.  465  ;  Tyson  i;. 
Sanderson,  45  Ala.  364;  Clay  v.  Clay,  3  Met.  (Ky.)  548.  But  see  Reynolds  v. 
Walker,  29  Miss.  250.  There  are  extreme  cases  in  which  a  guardian  would  not 
be  charged,  for  delaying  to  invest,  even  with  simple  interest,  it  appearing  on 
proof  that  he  could  not  do  so  by  exercising  due  diligence.  Brand  v.  Abbott,  42 
Ala.  499. 

*  See  language  of  the  Master  of  the  Rolls,  in  Jones  v.  Foxall,  13  E.  L.  &  Eq. 
140;  Roche  v.  Hart,  11  Ves.  68. 

5  2  Kent  Com.  231,  and  note  ib.,  with  citation  of  authorities.  And  see  Roche 
V.  Hart,  11  Ves.  58;  Robinson  v.  Robinson,  9  E.  L.  &  Eq.  70;  Light's  Appeal, 
24  Penn.  St.  180 ;  Kenan  v.  Hall,  8  Geo.  417  ;  Greening  v.  Fox,  12  B.  Monr.  187  ; 
Bentley  v.  Shreve,  2  Md.  Ch.  215;  Pettus  v.  Clauson,  4  Rich.  Eq.  92, 

[609] 


*  478  GUARDIAN  AND   WARD. 

ploys  them  in  trade,  he  must  account  for  the  profits.  As  this 
is  a  clear  breach  of  trust,  compound  interest  is  properly 
chargeable.  It  would  seem  to  be  the  true  rule  in  equity, 
where  large  profits,  which  ought  to  have  gone  to  the  credit  of 
the  cestui  que  trust,  are  appropriated  by  his  trustee,  to  require 
them  to  be  turned  in  on  account ;  and  to  impose  compound 
interest  instead  as  a  penalty  only  when  there  are  practical 
difficulties  in  the  way  of  enforcing  such  a  rule.  For  it  is 
obvious  that  in  this  country  a  guardian  can  frequently  afford 
to  pay  compound  interest  for  the  use  of  his  ward's  money,  if 
he  is  suffered  to  retain  the  full  profits  of  the  speculation  for 
himself.^  Where  he  loans  his  ward's  money  on  usury,  and 
thereby  forfeits  the  whole  debt,  he  is  liable  for  principal  and 
interest.2  But  this  need  not  prevent  him  from  investing  at 
more  than  the  ordinary  or  "  legal  "  rate,  if  it  be  in  reality 
lawful ;  and  in  some  States  he  is  bound  to  do  so.^  It  has 
been  held  that  where  a  guardian  employs  his  ward's  money 
in  a  business  which  he  allows  his  son  to  manage,  with  a  por- 
tion of  the  profits  as  his  compensation,  and  the  transaction  is 
free  from  fraud,  he  is  not  chargeable  with  his  son's  share  of 
the  profits.^ 

AVhile  in  many  States  the  guardian's  investment  of  his 
ward's  moneys  in  stocks  is  illegal,  and  it  must  be  his  loss  if 
the  stock  turn  out  unproductive,  the  tendency  of  the  deci- 
sions is  to  make  him  liable,  in  case  the  stock  proves  produc- 
tive, for  the  highest  market  value  of  the  shares  which  he 
realized  or  miglit  have  realized,  and  for  all  the  dividends  he 
received  from  them.^ 

Where  the  trust  property  is  already  invested  on  securities 

which  would  not  be  sanctioned  by  the  court,  the  ques- 

*  479    tion  sometimes  *  arises  how  far  it  is  the  guardian's  duty 

to  call  them  in  and  invest  in  other  securities.     In  this, 

and  iti  matters  of  reinvestment,  the  same  principles  would  be 

held  to  apply  as  to  general  trustees.     And  since  such  ques- 

1  Spear  v.  Spear,  9  Rich.  Eq.  184.  -  Draper  v.  Joiner,  9  Humph.  612. 

3  Foteaux  v.  Le  Page,  6  Iowa,  123  ;  Frost  v.  Winston,  32  Mis.  489. 
*  Kyle  I'.  Barnett,  17  Ala.  806. 

6  French  v.  Currier,  47  N.  H.  88  ;  Lamb's  Appeal,  68  Penn.  St.  142;  Atkin- 
son V.  Atkinson,  8  Allen,  16. 

[  ^^10  ] 


EIGHTS  AND  DUTIES   OF  GUARDIAN.  *  479 

tions  have  arisen  almost  always  under  testamentary  trusts, 
and  not  as  between  guardian  and  ward,  the  reader  is  referred 
to  works  on  that  subject  for  a  full  exposition  of  the  law.  We 
will  simply  add,  that  much  is  to  be  left  to  a  guardian's  dis- 
cretion, in  this  and  all  other  respects,  where  he  manages  the 
property  of  his  ward  on  the  footing  of  a  trustee  ;  and  that  he 
will  not  be  held  to  strict  account  for  losses  occasioned  in  the 
exercise  of  his  authority,  where  he  has  acted  bona  fide^  and 
according  to  the  best  of  his  judgment,  though  not  with  all  the 
promptitude  and  skill  which  the  exigencies  of  the  ward's 
situation  demanded.^ 

1  See  Hill  Trustees,  and  Wliarton's  notes,  379-384. 

[511] 


*  480  GUARDIAN  AND   WARD. 


*  480  *  CHAPTER  VII. 

SALES    OF   THE   WARD's   REAL   ESTATE. 

The  nature  of  personal  property,  its  convertibility  into 
cash,  and  the  necessity  frequently  arising  for  changes  of 
investment  in  order  to  make  it  sufiBciently  productive,  have 
brought  about  a  flexible  rule  so  far  as  its  purchase  and  sale 
is  concerned,  and  no  actual  conversion  takes  place.  Hence, 
courts  of  chancery  at  the  present  day  assume  considerable 
latitude  in  directing  changes  from  one  species  of  personal 
estate  to  another.  Especially  liberal  must  be  the  rule  in 
those  States  where  the  trustee  is  free  to  invest  in  any 
securities  deemed  proper,  provided  he  observes  prudence 
and  good  faith.  Hence,  too,  the  guardian  himself  may  sell  and 
reinvest  his  ward's  personal  estate,  and  make  purchases,  with- 
out a  previous  order  of  court.  But  this  is  to  be  considered 
rather  the  Ameri  ;  n  than  the  English  rule ;  since,  as  we 
have  seen  in  the  preceding  chapter,  a  guardian's  discretion  is 
strict  y  limited  in  England,  and  the  practice  of  the  chancery 
courts  in  such  matters  is  to  control  the  property. 

Courts  of  chancery,  however,  have  no  inherent  original 
jurisdiction  to  direct  the  sale  of  lands  belonging  to  infants. 
The  legislative  power  of  a  State  may  take  the  property  of  its 
citizens  in  th3  exercise  of  the  right  of  eminent  domain.  But 
a  judicial  tribunal  properly  hesitates  to  assume  such  functions. 
The  common  law,  which  recognized  fully  the  right  of  indi- 
viduals to  the  enjoyment  of  their  possessions,  and  particularly 
of  real  estate,  without  disturbance,  appears  to  have  treated 
lands  belonging  to  infants  as  property  which  should  be  pre- 
served intact  until  the  owner  became  of  sufficient  age  to  dis- 
pose of  it  according  to  his  own  pleasure.  Timber  miglit  be 
felled,  and  mineral  ore  dug  out  and  carried  away;  but  though 
[512] 


SALES   OF  WARD'S   REAL   ESTATE.  *  480 

such  acts  constituted  a  technical  conversion  of  real  estate,  they 
were  in  effect  but  a  mode  of  enjoyment  of  the  rents  and  prof- 
its, and  the  guardian  was  obliged  to  account  for  these  products 
of  the  soil  to  the  infant  owner.  Sales  of  the  ward's  lands 
were  authorized  in  certain  cases,  as  where  there  were  debts 
to  be  paid,  encumbrances  to  be  discharged,  judgments  to  be 
satisfied,  and  necessary  repairs  to  be  made  upon  the  premises. 
But  in  such  cases  the  Court  of  Chancery  violated  no  rights  of 
ownership ;  since  it  is  the  universal  doctrine  that  property 
can  only  be  held  subordinate  to  the  ol)ligation  of  paying  one's 
debts.i  Courts  of  chancery  went  no  further,  except  when 
authorized  by  statutes.  They  preferred  that  the  infant's 
property  should  remain,  while  guardianship  lasted,  impressed 
with  its  original  character.  In  the  settlement  of  estates, 
personal  property  was  to  be  taken  to  pay  what  was  needful 
for  support  and  maintenance,  rather  than  lands.  Not  even 
purchases  of  real  estate  were  favorably  regarded.  And 
when  a  sale  became  necessary,  the  real  estate  was  not 
*  resorted  to  until  other  means  of  raising  money  had  *  481 
failed ;  nor  was  a  general  sale  of  the  lands  ordered 
whenever  a  partial  sale  would  suffice. 

On  this  subject  Lord  Hardwicke  observed  as  follows,  in 
Taylor  v.  Philijys :  ^  "  There  is  no  instance  of  this  court's 
binding  the  inheritance  of  an  infant  by  any  discretionary  act 
of  the  court.  As  to  personal  things,  as  in  the  composition  of 
debts,  it  has  been  done,  but  never  as  to  the  inheritance  ;  for 
that  would  be  taking  on  the  court  a  legislative  authority, 
doing  that  which  is  properly  the  subject  of  a  private  bill." 
This  language  received  the  subsequent  approval  of  Lord 
Chancellor  Hart.^  It  has  also  been  quoted  as  the  recognized 
law  in  this  country.* 

1  See  Shaffner  r.  Briggs,  36  Ind.  55.  On  application  for  maintenance,  chan- 
cery has  jurisdiction  to  charge  expenses  of  past  maintenance  and  costs  on  tlie 
infant's  land.  //(  re  Howarth,  L.  R.  8  Ch.  415.  And  see  De  Witte  v.  Palin,  L.  R. 
14  Eq.  251 ;  Nunn  v.  Hancock,  L.  R.  6  Ch.  850,  as  to  jurisdiction  in  sale  of 
reversionary  interest  of  an  infant. 

^  2  Ves.  23.  3  Russel  v.  Russel,  1  Moll.  525. 

*  Rogers  t-.  Dill,  6  Hill,  415.  See  also  the  learned  and  elaborate  opinion  of 
the  court,  with  citation  of  English  authorities,  in  Williams'  Case,  3  Bland,  186 ; 
Jewett,  Ex  parte,  16  Ala.  409  ;  Thompson  v.  Brown,  4  Johns.  Ch.  619  ;  Faulkner 
V.  Davis,  18  Gratt.  651. 

33  [  513  ] 


*48l  GUARDIAN  AND  WARD. 

Hence,  too,  whenever  the  Court  of  Chancery  has  permitted 
purchases  of  lands,  the  infant's  right  to  affirm  or  disaffirm  on 
reaching  majority,  or,  as  chancery  sometimes  expresses  it,  to 
show  cause,  has  been  reserved.  Lord  Eldon  lays  down  with 
great  caution  the  power  of  the  court  in  changing  the  infant's 
property,  so  as  not  to  affect  the  infant's  power  over  it  when 
he  comes  of  age.^  And,  whatever  may  be  the  rule  where 
there  is  some  claim  or  debt  to  be  satisfied,  it  appears  that 
chancery  will  decline  ordering  a  sale  of  land  belonging  to  an 
infant  merely  upon  the  ground  that  the  sale  would  be  bene- 
ficial to  him;- while  in  any  case,  if  there  be  a  material  error 
in  substance,  and  not  in  form  alone,  a  purchaser  may  object 
to  the  title,  and  the  court  will  discharge  him  from  his  con- 
tract.2 

One  objection  to  conversions  of  property,  namely,  that  the 
laws  of  inheritance  are  not  the  same  in  real  and  personal 
estate,  became  obviated  in  equity  by  treating  the  proceeds 
throughout  as  impressed  with  the  character  of  the  original 
fund ;  a  rule  of  large  application  both  in  England  and  Amer- 
ica.^ Another  objection,  upon  which  English  writers  have 
dwelt  at  length,  arose  under  the  law  of  testamentary  disposi- 
tions, which  allowed  infants  to  give  and  bequeath  personal 
estate,  males  at  the  age  of  fourteen,  and  females  at  twelve, 
while  real  estate  could  not  be  devised  under  twenty-one. 
Here  again  chancery  decreed,  whenever  a  conversion  was 
authorized,  that  the  right  of  testamentary  disposition 
*  482  should  not  be  thereby  *  changed.  The  wills  act  of 
1  Vict.  c.  26,  dispenses  with  this  distinction  in  testa- 
mentary dispositions  altogether.^     And  this  latter  objection 


1  Ware  v.  Polhill,  11  Ves.  278 ;  Ex  parte  Phillips,  19  Ves.  122. 

2  See  1  Dan.  Ch.  Pract.  3d  Am.  ed.  159,  160;  Calvert  v.  Godfrey,  6  Bear. 
106. 

3  Wheldale  v.  Partridge,  5  Ves.  396;  Macphers.  In£  284;  Story  Eq.  Juris. 
§§  790-793,  and  authorities  cited ;  2  Kent  Com.  230,  and  n. ;  Forman  v.  Marsh, 
1  Kern.  oH ;  Horton  i-.  McCoy,  47  N.  Y.  21 ;  Fidler  v.  Higgins,  6  C.  E.  Green, 
138 ;  Holmes'  Appeal,  53  Penn.  St.  339 ;  March  v.  Berrier,  6  Ired.  Eq.  524 ; 
Huger  V.  Huger,  3  Desaus.  18.  But  this  is  not  necessarily  the  case  at  law.  And 
such  proceeds  lose  their  original  character  and  become  personalty  on  their  first 
transmission  though  to  an  infant.     Dyer  v.  Cornell,  4  Barr,  359. 

*  Macphers.  Inf.  278,  and  cases  cited.    See  Hill  on  Trustees,  896,  n. 

[514] 


SALES  OF  WARD'S  REAL  ESTATE.  *  4S'2 

never  could  have  arisen  in  the  courts  of  some  of  the  United 
States. 

Guardians  and  tutors  of  minors  at  the  civil  law  had  power, 
under  the  direction  of  the  proper  court,  as  it  would  appear, 
to  convey  the  estates  of  their  wards.^ 

Legislative  authority  may  intervene  to  direct  the  absolute 
sale  of  an  infant's  lands.  And  since  the  ownership  of  real 
estate  in  this  country  is  vested  with  comparatively  little  of 
that  sanctity  and  importance  which  the  ancient  laws  of 
primogeniture  and  feudal  tenure  threw  about  it,  and  inas- 
much as  purchases  and  sales  of  land  are  fast  becoming  matters 
of  every-day  occurrence,  the  legislatures  of  most  of  the  United 
States  have  seen  fit  to  enact  laws  for  facilitating  the  sales  of 
real  estate  by  fiduciary  officers. 

They  are  comparatively  recent,  and  not  altogether  uniform 
in  their  provisions.  But  in  most  essential  features  they  are 
alike.  They  constitute  a  permanent  system.  As  cases  are 
constantly  arising  under  these  laws,  we  shall  here 
briefly  *  notice  some  of  the  principles  which  have  a  *  483 
special  bearing  upon  the  sales  of  real  estate,  so  far  as 
guardians  are  concerned. 

The  American  statutes  relative  to  the  sale  of  lands  belong- 
ing to  infants  have  the  following  points  in  common  :  First,  an 
application  to  the  court  on  the  infant's  behalf  upon  wdiich  the 
order  of  sale  issues.  Second^  a  special  bond  to  be  filed  by 
the  guardian.  Third,  the  formal  sale  of  the  land.  Fourth, 
the  execution  of  the  deed  to  the  purchaser.  Fifth,  a  proper 
disposition  of  the  proceeds  of  the  sale.  And  in  some  States 
a  judicial  confirmation  of  the  sale  is  required.  The  judicial 
order  of  sale  is  frequently  termed  a  license  ;  and  the  exact 
method  of  procedure  is  indicated  in  the  statutes  themselves. 

These  statutes,  we  may  add,  not  unfrequently  limit  the 
purpose  for  which  such  sales  may  be  made  :  as,  for  instance, 
when  the  ward  has  no  other  means  for  his  education  and 
support.     And  again,  the  guardian  to  be  authorized,  is  the 

1  Menifee  v.  Hamilton,  32  Tex.  495. 

[515] 


*  483  GUARDIAN  AND   WARD. 

probate,  not  the  natural,  guardian,  who  besides  giving  the 
usual  bond  of  guardianshij)  is  likewise  required  to  give  the 
special  bond  of  which  we  speak  for  the  purposes  of  the  sale.^ 
And  the  legislative  provision  sometimes  extends  to  sales  of 
reversionary  or  equitable  interests  of  minors ;  or,  again,  is 
Hmited  to  property  in  which  the  minor  has  the  legal  title. 
As  to  tlie  disposition  of  the  proceeds,  the  guardian's  con- 
duct is  to  be  regulated  by  the  terms  of  his  license.  If  he  was 
permitted  to  sell  for  the  purpose  of  maintenance  and  support, 
the  moneys  obtained  must  be  so  appropriated ;  if  for  the  pay- 
ment of  certain  debts,  those  debts  must  be  paid  ;  if  for 
investment  in  other  securities,  he  must  invest  therein ;  and, 
unless  the  court  leaves  the  investment  to  his  own  discretion, 
he  is  bound  to  invest  as  it  orders.  Any  other  course  of  con- 
duct will  subject  him  to  penalties  for  breach  of  his  special 
bond.  He  is  not  justified  in  appropriating  the  proceeds  of 
the  sale  for  the  above  objects  generally,  however  reasonable 
it  might  be  to  do  so  on  other  considerations ;  but  for  the  par- 
ticular object  contemplated  by  the  court  in  granting  the  li- 
cense.^ Not  even  the  ward's  assent  to  his  disposition  of  the 
proceeds  can  exonerate  the  guardian  from  responsibility  to 
other  parties  immediately  interested,  for  such  losses  as  may 
occur  by  reason  of  his  disregard  of  this  rule.^  Nor  is  his 
special  bond  discharged  by  the  fact  that  he  produced  the 
proceeds  of  the  sale  in  court,  and  was  then  ordered  to  with- 
draw them  ;  for  the  guardian  and  not  the  court  is  the  proper 
custodian  of  the  fund.*  Any  person  not  the  guardian, 
authorized  to  sell  in  such  cases,  is  held  to  account  in  like 


manner 


The  guardian's  deed  made  under  such  orders  of  court  has 

usually  only  the  effect  of  a  quitclaim,  except  so  far  as  he  may 

have  covenanted  on  his  j)art  that  he  has  complied  with  the 

statute  requisites  and  that  he  is  the  guardian  duly  authorized ; 

and  in  general  he  cannot  bind  his  ward  by  any  covenants  of 

warranty  in  the  deed.^ 

1  See  Morris  v.  Morris,  2  McCart.  239 ;  Shanks  v.  Seamonds,  24  Iowa,  131 ; 
People  V.  Circuit  Judge,  19  Mich.  296. 

-  Strong  V.  Moe,  8  Allen,  12.5.  3  Harding  v.  Larned,  4  Allen,  426. 

<  State  V.  Steele,  21  Ind.  207.  '  Pope  i^.  Jackson,  11  Pick.  113. 

6  State  V.  Clark,  28  Ind.  138. 

[516] 


SALES   OF  WARD'S  REAL  ESTATE.  *  484 

*  The  most  difficult  question  which  arises  under  the  *  484 
statutes  relating  to  sales  of  the  infant's  lands,  is  that 
of  the  essentials  of  the  purchaser's  title.  In  what  cases  mav 
the  guardian's  sale  be  set  aside  ?  What  statute  provisions 
shall  be  regarded  as  imperative,  and  what  as  merely  direc- 
tory ?  How  far  will  irregularities  avoid  the  guardian's  acts, 
and  who  is  at  liberty  to  impeach  them  ?  One  proposition 
may  be  laid  down  at  the  outset.  It  is  that,  inasmuch  as  the 
authority  of  the  guardian  to  make,  and  of  the  court  to  per- 
mit, an  absolute  sale  of  the  infant's  lands,  is  limited  to  the 
grant  of  powers  conferred  by  the  legislature,  the  terms  of 
such  grant  should  be  carefully  followed.  Sales  made  in  utter 
disregard  of  the  precautions  wisely  interposed  by  law  are 
absolutely  worthless.^ 

On  the  other  hand,  it  muet  be  admitted  that  there  is  always 
a  hardship  imposed  upon  a  bona  fide  purchaser,  whose  rights 
once  apparently  vested,  are  afterwards  pronounced  null.  If 
the  purchaser  took  the  child's  lands  by  collusion  and  fraud, 
or,  being  the  guardian  himself,  abused  his  trust  to  secure  his 
own  profit,  equity  might  justly  suffer  the  transaction  to  be 
set  aside  altogether.  But  a  stranger  who  pays  his  purchase- 
money  honestly  and  fairly  ought  not  to  be  compelled  to  suffer 
for  mere  irregularities  under  the  law.  For  such  fraudulent 
acts  of  the  guardian  as  necessarily  follow  the  consummation 
of  a  bargain  —  as  the  misapplication  of  the  purchase-money 
—  it  is  clear  that  the  purchaser  is  not  liable.^  A  sale,  too,  if 
valid  when  made,  is  not  rendered  invalid  by  the  guardian's 
subsequent  resignation  and  the  appointment  of  another  per- 
son in  his  place.3  As  to  those  acts  which  precede  the  con- 
summation of  a  bargain  the  purchaser  is  put  on  his  guard, 
unless  from  the  very  nature  of  the  case  they  could  not  have 
come  to  his  observation.  Irregularities  or  omissions  to  comply 
with  statute  formalities  seem  to  range  themselves  in  three 
classes  :  those  which  are  immaterial ;  those  which  will  render 
a  sale  voidable  by  certain  parties  interested  ;  those  which  go 

1  Ex  parte  Guernsey,  21  111.  443  ;  Barrett  v.  Ciiurchill,  18  B.  Monr.  387 ;  Pat- 
ton  V.  Thompson,  2  Jones  Eq.  411  ;  Mason  v.  Wait,  4  Scam.  127. 

2  Fitzgibbon  v.  Lake,  29  111.  165. 

'  Herndon  v.  Lancaster,  6  Bush,  483. 

[517] 


*484  GUARDIAN  AND  WARD. 

to  the  foundation  of  the  sale  and  render  it  void  alto- 
*  485  gether.  And,  according  to  *  the  judicial  construction 
of  such  irregularities  and  omissions,  under  the  statutes 
and  practice  of  the  State,  will  the  purchaser's  title  be  de- 
termined. 

Where  the  sole  authority  of  the  guardian  is  derived  from 
the  statute,  courts  will  reluctantly  declare  any  part  of  that 
statute  immaterial,  except  in  the  sense  that  the  responsibility 
for  non-compliance  is  thrown  upon  the  guardian  or  the  court, 
and  not  upon  the  purchaser.  Informalities  in  the  recitals  of 
a  bona  fide  deed,  defective  notices,  the  insertion  of  irrelevant 
or  superfluous  matter  in  the  order  of  sale,  errors  of  the  guar- 
dian in  his  allegations  or  of  the  court  in  issuing  process,  have 
been  in  this  sense  ruled  as  immaterial.  But  such  cases  are 
generally  not  so  much  of  statutory  direction  as  of  judicial 
rule  and  common-law  analogies  in  supplying  the  intention  of 
the  legislature  where  the  statute  was  silent.  The  general 
principle  prevails,  that  it  is  wise  policy  to  sustain  judicial 
sales,  and  that  they  should  not  be  declared  void  or  voidable 
for  slight  defects.^ 

As  to  irregularities  or  omissions  which  will  render  a  sale 
voidable,  either  the  infant  heir  or  some  other  person  in  inter- 
est has  been  unfairly  dealt  with.  Here  the  privilege  is  ac- 
corded, to  the  party  or  parties  wronged,  of  having  the  sale 
set  aside  on  appeal  or  by  direct  proceedings  instituted  for  that 
purjiose  ;  but  not  in  a  collateral  manner.  We  need  not  here 
speak  of  the  infant's  right  of  election  in  certain  cases  on  at- 
taining majority .2  Where  in  general  the  guardian  obtained 
his  license  without  duly  notifying  a  person  in  interest,  such 
person  is  allowed  to  have  the  sale  set  aside.  The  purchaser's 
title  is,  however,  good  in  the  mean  time.  Nor  can  any  one 
take  advantage  of  the  defective  proceedings  but  those  whose 
interests  were  injuriously  affected.  A  special  limit  is  fre- 
quently set  by  law  to  proceedings  of  this  kind,  for  the  sake 
of  quieting  titles ;  otherwise,  the  ordinary  statute  of  limita- 


i  Fitzgibbon  v.  Lake,  29  111.  165  ;  Cooper  v.  Sunderland,  3  Iowa,  114;   Thorn- 
ton V.  McGrath,  1  Duv.  349 ;  Ackley  v.  Dygert,  33  Barb.  176. 
2  Infra,  p.  510. 

[518] 


SALES  OF   WARD'S  REAL  ESTATE.  *  485 

tions  seems  to  apply.^  Certain  defects  in  a  sale,  too,  are  in 
some  States  (but  not  in  others)  treated  as  cured  by.  the  court's' 
confirmation  of  the  sale ;  and  this  more  particularly  where  it 
is  shown  that  the  sale  was  beneficial  to  the  ward.- 

*  But  as  to  irregularities  or  omissions  which  render  *  486 
the  sale  void  altogether,  there  is  some  confusion  of  au- 
thorit3^  The  principle  itself  is  a  clear  one,  but  in  the  appli- 
cation there  is  much  difficulty.  Doubtless  the  license  of  a 
court  without  competent  jurisdiction  would  be  void.  But 
where  the  court  has  jurisdiction,  it  is  material  to  inquire  what 
provisions  of  the  statute  are  positive  and  what  are  declara- 
tory. In  some  cases,  a  very  strict  rule  seems  to  have  been 
pursued ;  in  others,  the  construction  has  been  liberal  in  favor 
of  the  purchaser's  rights.  The  execution  of  the  statute  bond 
would  seem  to  be  in  general  an  essential ;  so,  too,  a  public  sale 
at  the  time  set ;  sometimes  the  filing  of  an  oath ;  the  offer 
of  such  land  as  the  license  designates  and  none  other ;  the 
delivery  of  a  deed  to  the  purchaser  and  receipt  of  the  pur- 
chase-money. And  yet  the  guardian's  failure  to  comply  with 
certain  of  these  formalities  in  some  States  does  not  affect  the 
purchaser's  title.  The  difficulty  is  set  at  rest  in  Massachu- 
setts by  a  statute  provision  as  to  the  essential  particulars 
which  a  bona  fide  purchaser  is  bound  to  notice.^  We  can  onlv 
add  that,  in  States  where  the  legislature  supplies  no  such 
provision,  a  purchaser  cannot  feel  safe  in  disregarding  any 
forms  of  procedure  prescribed  in  so  many  words ;  and  that, 
the  more  explicit  the  language  of  the  statute,  the  more  care- 
ful he  should  be  in  insisting  on  the  prescribed  course,  espe- 
cially as  to  the  sale  and  the  method  of  conducting  it."* 

The  purchaser  may  sometimes  maintain  a  bill  in  equity  for 

1  Kimball  v.  Fisk,  39  N.  H.  110  ;  Bryan  v.  Manning,  6  Jones,  334  ;  Field  v. 
Golflsby,  28  Ala.  218  ;  Dutclier  v.  Hill,  29  Mis.  271 ;  Gilmore  v.  Rodgers,  41 
Penn.  St.  120;  Marvin  v.  Sciiilling,  12  Mich.  356;  Kenniston  v.  Leigliton,  43 
N.  H.  309. 

^  See  Emery  r.  Vroman,  19  Wis.  689;  Mahoney  v.  McGee,  4  Bush,  527; 
Blackman  v.  Baumann,  22  Wis.  611 ;  Pursley  v.  Hayes,  22  Iowa,  11. 

»  Gen.  Sts.  Mass.  c.  102,  §§  37-48. 

*  Williams  v.  Morton,  38  Me.  47  ;  Owens  i\  Cowan,  7  B.  Monr.  152;  Palmer 
V.  Oakley,  2  Doug.  433  ;  Stall  v.  Macalester,  9  Ham.  19;  Blackman  v.  Baumann, 
22  Wis.  611 ;  Strouse  i'.  Drennan,  41  Mis.  289;  Brown  v.  Christie,  27  Tex.  73; 
Frazier  v.  Steenrod,  7  Iowa,  339. 

[519] 


*  486  GUARDIAN  AND    WARD. 

rescinding  the  sale  on  account  of  illegality.  But  he  must 
'  offer  to  surrender  possession  and  to  account  for  the  use  and 
occupation  of  the  premises.^  Defective  proceedings  are  some- 
times cured  by  the  court,  so  as  to  compel  him  to  abide  by  the 
terms  of  the  purchase.  And  it  seems  that  he  may,  by  his 
laches,  forfeit  his  right  of  objection  to  the  sale.^ 

Where  a  non-resident  guardian  applied  for  the  sale  of  real 
estate  in  Maine  belonging  to  his  ward,  also  a  non-resi- 

*  487    dent,  the  *  person  authorized  in  that  State  to  make  the 

sale  was  ordered  to  transmit  the  proceeds  to  such  non- 
resident guardian ;  but  this  would  not  be  the  rule  in  some 
other  States.^  Statutes  have  been  frequently  enacted  by 
which  non-resident  guardians  may  sell  their  wards'  lands, 
on  j)etition  to  the  court  having  jurisdiction,  with  an  authen- 
ticated copy  of  the  letters  of  guardianship,  and  compliance 
with  the  ordinary  formalities  of  such  sales. 

It  is  held  in  New  York  that  the  statutes  of  that  State  pro- 
vide for  judicial  sales  only  in  cases  where  the  legal  title  is 
in  the  infants ;  and  that,  independently  of  such  statutes,  the 
Court  of  Chancery  may  order  a  sale  of  the  equitable  estate. 
On  this  principle  a  chancery  sale  was  sustained,  as  against  the 
infants,  where  the  trust-estate  of  infants  in  lands  had  been 
transferred  by  a  contract  made  between  the  guardian  and 
purchaser  with  the  approval  of  the  court.^  Other  sales  of 
this  kind  have  been  allowed  where  the  legal  estate  was  in  the 
infant.^  The  course  of  procedure  in  that  State  is  somewhat 
peculiar,  and  English  chancery  precedents  are  strongly  fa- 
vored. It  is  held  that  the  part  owner  of  lands  in  which  an 
infant  is  interested  ought  not  to  be  allowed  to  make  the  sale.*^ 
So  too  the  sale  of  a  court,  contrary  to  the  provisions  of  a 
devise,  is  utterly  void."     And  in  a  late  case  the  chancery  juris- 

1  Shipp  V.  Wheeless,  33  Miss.  646 ;  Loyd  v.  Malone,  23  111.  43  ;  Anderson  v. 
Layton,  3  Bush,  87.  -  Cooper  v.  Hepburn,  15  Gratt.  551. 

3  Johnson  v.  Avery,  2  Fairf.  99 ;  contra.  Clay  v.  Brittingham,  34  Md.  675. 

4  Woods  V.  Mather,  38  Barb.  473  ;  Anderson  v.  Mather,  44  N.  Y.  249. 

5  In  re  Hazard,  9  Paige,  365.  «    In  re  Tillotsons,  2  Edw.  Ch.  113. 

7  Rogers  v.  Dill,  6  Hill,  415.  See  also  Matter  of  Ellison,  5  Johns.  Ch.  261 ; 
Sutphen  v.  Fowler,  9  Paige,  280. 

[520] 


SALES   OF  WARD'S   REAL  ESTATE.  *  487 

diction  over  the  land  of  infants  is  expressed  in  quite  guarded 
language  ;  and  apparently  to  the  effect  that  the  court  has  no 
inherent  original  jurisdiction  to  direct  such  sales,  but  that 
authority  must  be  derived  from  statute.  Here,  real  estate 
owned  by  tenants  in  common,  of  whom  an  infant  was  one, 
was  sold  under  and  in  pursuance  of  a  judgment  in  a  partition 
suit  instituted  by  others  of  the  tenants  in  common ;  and  it  Avas 
held  that  the  portion  of  the  proceeds  belonging  to  the  infant 
remained  impressed  with  the  character  of  real  estate,  and  as 
such  did  not  pass  under  the  infant's  will.i 

There  are,  indeed,  numerous  American  decisions,  in  which 
the  rights  of  infants  in  lands  are  protected  in  equity,  so  far  as 
to  give  the  infants  opportunity  to  confirm  or  set  aside  the 
sale,  and  prevent  them  from  being  bound  by  a  transaction  to 
which  they  could  not  be  parties  in  their  own  right.  Instances 
are  found  in  administrator's  settlements  to  which  the  infant 
heir  was  not  a  privy,  sales  under  decree  to  persons  who  had 
never  paid  the  purchase-money,  and  fraudulent  transactions.^ 
It  is  held  that  chancery  cannot  interfere  with  the  lands  of 
infants  unborn.^  But  sales  made  in  fraud  of  an  infant  are 
sometimes  adopted  and  confirmed  by  a  court,  with  the  pur- 
chaser's assent,  as  being  beneficial  to  the  infant.^  And  as  we 
shall  see  hereafter,  length  of  time  and  laches  on  the  infant's 
part  after  reaching  majority,  may  often  render  the  transaction 
unimpeachable.^ 

1  Horton  v.  McCoy,  47  N.  Y.  21. 

2  Williams  v.  Duncan,  44  Miss.  376 ;  Jones  v.  Billstein,  28  Wis.  221  ;  Wil- 
liams V.  Wiggand,  5-3  111.  233  ;  Terry  v.  Tuttie,  24  Mich.  206  ;  Phillips  v.  Phil- 
lips, 50  Mis.  604  ;  Walke  v.  Moody,  65  N.  C.  509. 

3  Downin  v.  Sprecher,  36  Md.  474. 
*  Ex  parte  Kirkman,  3  Head,  517. 

5  See  infra,  Infancy,  chs.  5  and  6 ;  Havens  v.  Patterson,  43  N.  Y.  218.  See 
Mitchell  V.  Jones,  50  Mis.  438,  where  a  sale  is  set  aside  because  of  gross  inade- 
quacy of  price. 

[521] 


*488  GUARDIAN  AND   WARD. 


*488  *  CHAPTER    VIII. 

THE   guardian's   BOND,    INVENTORY,    AND    ACCOUNTS. 

It  is  the  practice  of  the  English  Court  of  Chancery  to  re- 
quire chancery  guardians  appointed  on  petition  without  suit 
to  enter  into  recognizance  to  account.  When  reference  is 
made  to  a  master  on  the  original  petition  for  guardianship,  he 
is  directed  to  make  a  report  approving  of  the  security  offered 
as  well  as  of  the  person  desiring  the  appointment.  On  this 
report  the  court  proceeds  to  act.  A  recognizance  with  sure- 
ties is  usually  taken  ;  but  the  court  uses  its  discretion ;  and 
sometimes  the  personal  recognizance  of  the  guardian  is  deemed 
sufficient.  This  recognizance  is  vacated  when  the  infant 
comes  of  age.  No  recognizance  in  modern  practice  is  required 
from  the  guardian  of  the  person  who  is  appointed  where  the 
infant  has  been  made  a  ward  of  chancery  during  the  pendency 
of  a  suit.  Nor  is  it  given  by  guardians  selected  by  the  court 
for  special  purposes  ;  as,  for  instance,  to  give  formal  consent 
to  an  infant's  marriage  under  Lord  Hardwicke's  Act.  In  a 
word,  the  chancery  rule  appears  to  be  that  guardians  of  the 
estate  give  security  for  the  performance  of  their  trust,  but 
guardians  of  the  person  none.  Special  circumstances  may, 
however,  arise  for  requiring  recognizance  from  the  latter.^ 

Since  the  active  management  of  the  infant's  estate  is  fre- 
quently intrusted  to  a  receiver,  selected  as  an  officer  of  the 
court,  the  latter  is  also  bound  to  account  annually  and  pay 
his  balances  into  court.  For  performance  of  these  duties  he 
gives  proper  security ;    and  he  is  alloAved  a  salary  for  his 

services.^ 
*  489        *In  this  country,  as  we  have  seen,  most  guardians 
of  the  estate  are  what  may  be  termed  probate  guar- 

1  Macphers.  Inf.  108,  348,  553  ;  2  Kent  Com.  227. 

2  Macphers.  Inf.  266.  As  to  chancery  practice  in  New  York,  see  In  re  Mor- 
rell,  4  Paige,  44 ;  Minor  v.  Betts,  7  Paige,  696. 

[522] 


GUARDIAN'S  BOND,  INVENTORY,  AND  ACCOUNTS.    *  489 

dians,  deriving  their  authority  under  the  appointment  of 
courts  which  most  resemble  the  old  ecclesiastical  courts  of 
England.  The  practice  which  has  grown  up  in  most  of  the 
States,  as  well  as  our  statute  law,  places  guardians,  therefore, 
in  many  respects,  on  the  same  footing  as  executors  and  ad- 
ministrators. Like  such  officers,  they  give  bonds,  file  inven- 
tories, and  render  regular  accounts  to  the  court;  and  the 
same  principles  which  apply  to  the  one  class,  in  these  respects, 
apply  also  to  the  other. 

A  probate  guardian,  before  receiving  from  the  court  his  let- 
ters of  appointment,  is  obliged  to  give  bond,  with  good  secu- 
rity, for  the  faithful  performance  of  his  trust.  As  such  guardian 
is  intrusted  with  both  the  person  and  estate  of  his  ward,  the 
language  of  liis  bond  should  be  framed  accordingly.  In  some 
States  the  statute  prescribes  the  terms,  substantially  as  fol- 
lows :  To  make  a  true  inventory  of  the  ward's  estate  which 
shall  come  to  his  possession  or  knowledge ;  to  manage  the 
property  according  to  law  and  the  best  interests  of  the  ward, 
and  to  discharge  his  trust  faithfully  in  relation  thereto  ;  to 
render  regular  accounts  to  the  court ;  and,  finally,  to  make 
due  settlement  with  the  ward  or  other  person  lawfully  enti- 
tled at  the  expiration  of  his  trust.  The  bond,  in  case  of  an 
infant,  stipulates  for  a  faithful  discharge  of  duties  as  to  cus- 
tody, education,  and  maintenance  ;  but  where  the  ward  is  an 
adult  insane  person  or  spendthrift,  for  custody  and  main- 
tenance only.i 

The  ijenal  amount  of  the  guardian's  bond,  as  in  other  cases, 
is  usually  fixed  at  double  the  amount  of  the  estate  to  be  ac- 
counted for.  The  sureties  are  to  be  approved  by  the  court. 
When  such  sureties  are  insolvent  or  the  penal  sum  named  in 
the  bond  is  insufficient,  or  from  any  other  cause  the  bond 
becomes  unsatisfactory,  a  new  bond  may  be  ordered  Avith 
such  security  as  the  court  deems  proper.  This  bond  is  made 
payable  to  the  judge  or  his  successors  in  office,  and  is 
kept  on  file,  to  be  sued  in  behalf  of  *  the  ward  or  any  *  490 
other  person  who  may  be  injured  by  the  misconduct  of 
the  guardian  while  in  office.^ 

1  Smith's  Prob.  Pract.  88,  89. 

2  See  Mass.  Gen.  Sts.  c.  101 ;  ib.  c.  109 ;  Bennett  v.  Byrne,  2  Barb.  Ch.  216. 

[523] 


*  490  GUARDIAN  AND   WARD. 

A  j)robate  bond  may  be  good,  though  inartificially  drawn, 
if  substantially  in  compliance  with  the  statute.^  And  if  it 
contains  more  than  the  law  requires,  it  is  nevertheless  good 
for  such  portion  as  is  lawful.^  But,  perhaps  not,  if  it  con- 
tains less.  A  bond  is  not  to  be  avoided  for  slight  defects 
committed  through  carelessness  or  error.  In  some  instances, 
defective  bonds  have  been  cured  in  equity,  so  as  to  hold  both 
principal  and  sureties,  and  have  been  made  enforceable  even 
though  void  at  law.^  A  bond  is  not  vitiated  which  contains 
a  proper  recital  of  the  ward's  name,  although  there  is  a  dis- 
crepancy in  names  between  the  bond  and  letters  of  guardian- 
ship ;  and  yet  sureties  have  been  relieved  from  liability  on  the 
ground  that  the  ward  was  not  named  in  the  bond  at  all.^ 
The  true  principle  which  distinguishes  such  cases  seems  to 
be  that  the  identity  of  the  parties  should  sufficiently  appear. 

Where  there  are  several  wards,  one  probate  bond  is  sufficient 
for  all.^  But  separate  bonds  for  each  ward  would  not  be  im- 
proper, and,  in  some  instances,  might  be  even  preferable. 
The  names  of  all  the  wards  should  be  embraced  in  the  bond, 
where  only  one  is  furnished. 

Natural  guardians  are  not  required  to  give  bond.  Nor 
were  guardians  in  socage.  Nor,  in  England,  are  testamentary 
guardians  to  furnish  security  to  the  court.  The  reason  is  that 
these  guardians  were  not  judicially  appointed  nor  answerable 
in  general  to  the  court.  The  same  law  prevails  in  many  parts 
of  this  country.^  But  in  some  States  testamentary  guardians 
are  treated  like  executors,  in  respect  to  their  appointment ; 
that  is  to  say,  the  will  which  names  them  must  be  admitted 
to  probate  and  letters  issued ;    and  the  testator's  ap- 

*  491    pointment  is  made  subject  *  to  judicial  approval.     In 

such  cases,  the  testamentary  guardian,  like  the  execu- 
tor, is  required  to  give  security ;  but  he  may  be  exempted 

1  Probate  Court  v.  Strong,  27  Vt.  202 ;  Alston  v.  Alston,  34  Ala.  15. 

2  Pratt  V.  Wright,  13  Gratt.  175. 

3  Wiser  v.  Blachly,  1  Johns.  Ch.  607  ;  Sikes  v.  Truitt,  4  Jones  Eq.  361 ; 
Bumpas  v.  Dotson,  7  Humph.  310. 

*  Shuster  v.  Perkins,  1  Jones,  325  ;  Greenly  v.  Daniels,  6  Bush,  41  ;  Shroyer 
V.  Richmond,  16  Ohio  St.  455 ;  Richardson  v.  Boynton,  12  Allen,  138. 

5  Cranston  v.  Sprague,  3  R.  I.  205. 

6  See  supra,  ch.  1,  2 ;  Thomas  i'.  Williams,  9  Fla.  289. 

[524] 


GUARDIAN'S  BOND,   INVENTORY,  AND  ACCOUNTS.      *  491 

from  giving  sureties,  if  the  testator  requested  such  exemp- 
tion, and  the  court  deems  it  safe  to  grant  the  request. ^ 

The  bond  of  a  probate  guardian  renders  him  and  his  sure- 
ties liable  for  all  estate  of  the  ward  which  shall  come  to  his 
possession  or  knowledge.     This  includes  chattels  due  from 
the  guardian  to  the  ward  at  the  time  of  his  appointment  or  of 
the  execution  of  the  bond,  even  though  the  fund  be  the  pro- 
ceeds of  land  already  sold  and  paid  for,  and  the  rent  of  real 
estate  occupied  by  the  guardian  before  that  time.    It  embraces 
chattels  and  rents  and  income  from  every  species  of  property 
that  the  guardian  actually  receives  in  his  official  capacity,  or 
that  he  might  have  received  if  he  had  faithfully  performed 
his   duties.2      Property   received   from   persons    resident   in 
another  State  is  covered  by  the  bond  as  much  as  property 
originally  within  the  jarisdiction.3     But  while  the  property 
is  beyond  his  reach,  and  cannot  be  obtained  without  a  for- 
eign appointment,  the  liability  of  his  bondsmen  would   not 
seem   to   extend   beyond  a  general   dereliction  of  duty   on 
his  part   in   neglecting    the   proper   means   of  obtaining  it. 
The    bond  of   guardians    of  foreign    wards,  appointed    for 
recovering  estate  situated  in  their  own  State,  binds  them  to 
account  only  for  such  property,  nor  can  they  be  held  liable 
for  the  custody  of  the   wards  while  the  latter  remain  non- 
residents.    A  legacy  due  from  the  executor  of  the  ward's 
father,  and  other    estate  lawfully   payable  to  the  guardian 
by  the  executor,  must  all  be  accounted  for,  and  for  this  the 
guardian's   sureties    are   doubtless    liable.      But    for  prop- 
erty   unlawfully    received    by    the    guardian,   although    he 
may  be  compelled  to  account  for  it  on  his  personal  respon- 
sibility, his  sureties  are  not  liable,  since  it  does  not  come 
to  his  hands  as  guardian.^     Where  the  guardian  loans  his 

1  See  Mass.  Gen.  Sts.  c.  109. 

■-'  Mattoon  v.  Cowing,  13  Gray,  387;  Neill  v.  Neill,  31  Miss.  36;  Bond  v. 
Lockwood,  33  111.  212 ;  Williams  v.  Morton,  38  Me.  47  ;  McClendon  v.  Harlan, 
2  Heisk.  337. 

'  McDonald  v.  Meadows,  l.Met.  (Ky.)  507. 

*  Livermore  v.  Bemis,  2  Allen,  394;  Allen  v.  Crosland,  2  Rich.  Eq.  68;  Bal- 
lard V.  Bruniniitt,  4  Strobh.  Eq.  171.  As  to  liability  where  court  ordered  a 
deposit  of  money,  see  Griffith  v.  Parks,  32  Md.  1. 

[525] 


*  491  GUARDIAN  AND  WARD. 

ward's  money  improvidently,  he  and  his  sureties  become  and 
continue  liable  for  it.^ 

The  liability  of  sureties  lasts  while  the  responsibilities  of 

the  guardianship  continue,  and  it  does  not  terminate  by  the 

resignation  or  death  of  the  guardian.     For  the  ward's  estate 

in  the  guardian's  hands  or  subject  to  his  control  at  the  time 

of  his  death,   they   continue   liable.^     Not  even  the 

*  492    statutory  limitation  *  to  suits   against   executors  and 

administrators  oj)erates  to  relieve  such  sureties  for 
the  default  of  their  deceased  principal.^  They  are  liable  so 
long  as  the  official  bond  can  be  sued  at  all.  But  a  surety 
may  be  discharged  at  any  time  upon  his  petition  and  after  due 
notice  to  all  parties  interested ;  and  thereupon  the  court  will 
order  the  guardian  to  furnish  new  security,  and,  upon  his 
failure  to  do  so,  may  remove  him.  But  such  surety  remains 
liable  until  the  new  bond  is  approved.*  The  personal  repre- 
sentative of  a  deceased  surety,  it  would  appear,  ma}^  compel 
the  guardian  to  furnish  new  security  in  like  manner.^  The 
approval  of  a  new  bond  and  the  discharge  of  a  former  surety 
terminate  ipso  facto  the  liability  of  such  surety,  so  far  as  new 
acts  of  the  guardian  are  concerned,  notwithstanding  the 
security  substituted  may  prove  insufficient,  or  the  instru- 
ment fatally  defective.^  One  surety  cannot  be  discharged 
from  his  liability  without  the  other,  unless  the  latter  by  words 
or  acts  shows  his  consent  to  remain  solely  responsible.' 

The  sureties  on  a  guardian's  bond,  though  liable,  it  may  be, 
for  money  received  by  the  guardian  before  the  bond  was  made, 
are  not  liable  for  what  he  receives  after  having  been  removed 
from  office.^     And  where  a  ward  dies  and  the  guardian  ad- 

i  Richardson  v.  Boynton,  12  Allen,  138. 

2  Moore  v.  Wallis,  18  Ala.  458  ;  State  v.  Thorn,  28  Ind.  306 ;  Ashby  v.  John- 
ston, 23  Ark.  163. 

3  Chapin  v.  Livermore,  13  Gray,  561. 

*  Jamison  v.  Cosby,  11  Humph.  273 ;  Mass.  Gen.  Sts.  c.  101 ;  Bellune  v. 
Wallace,  2  Rich.  80. 

5  Moore  v.  Wallis,  18  Ala.  458. 

»  Hamner  v.  Mason,  24  Ala.  480.     See  Kendrick  v.  Wilkinson,  18  Ind.  206. 

■J  See  Newcomer's  Appeal,  43  Penn.  St.  43  ;  Sebastian  v.  Bryan,  21  Ark.  447 ; 
Frederick  i-.  Moore,  13  B.  Monr.  470 ;  Boyd  v.  Gault,  3  Bush,  644. 

8  Merrells  v.  Phelps,  34  Conn.  109. 

[526] 


GUARDIAN'S  BOND,  INVENTORY,  AND  ACCOUNTS.  *  492 

ministers  upon  his  estate,  the  liability  for  the  assets  formerly 
held  by  the  latter  as  guardian  becomes  transferred  to  him  as 
administrator,  and  the  sureties  on  his  administration  bond  are 
made  liable  in  place  of  those  who  were  his  bondsmen  in  the 
guardianship.^ 

Where  the  guardian  has  filed  an  additional  bond,  as  in  case 
of  a  large  accession  to  the  original  estate,  both  bonds  remain 
valid  and  the  sureties  are  all  deemed  co-sureties,  and  liable  as 
such.2  And  a  bond  voluntarily  offered  by  the  guardian  and 
approved  in  the  ordinary  form  is  as  binding  as  though  it  had 
been  ordered  by  the  court.^  Where  the  sureties  of  an  old 
bond  are  released  and  a  new  bond  is  sul)stituted,  the  proper 
rule  is  that  the  old  sureties  and  the  new  are  liable  together  as 
co-sureties  for  the  defaults  of  the  guardian,  previous  to  filing 
the  new  bond,  and  that  the  new  sureties  alone  bear  the  re- 
sponsibility of  his  subsequent  misconduct.*  Contribution  is 
in  proportion  to  the  penal  sum  named  in  the  respective 
bonds. 

*  Many  of  the  decisions  in  regard  to  administration  *  493 
bonds  apply  on  principle  to  those  of  guardians.    Thus, 

a  bond  which  is  not  signed  by  the  guardian,  is  not  binding 
even  upon  his  sureties.^  And  if  altered,  after  being  signed 
by  two  sureties,  with  the  consent  of  the  principal  only,  and 
then  signed  by  two  other  sureties,  ignorant  of  the  alteration, 
it  is  not  binding  upon  any  of  the  sureties  ;  not  upon  the  two 
first,  because  altered  without  theii:  consent ;  not  upon  the 
other  two,  because  they  were  not  informed  of  the  release  of 
the  two  former.^  So  joint  guardians  who  wish  to  limit  their 
respective  liabilities  must  furnish  separate  bonds  ;  since  both 
are  responsible  for  all  the  acts  of  each  other  during  the  con- 
tinuance of  the  joint  guardianship  where  they  execute  a  joint 

1  Baker  v.  Wood,  42  Ala.  664. 

2  Loring  v.  Bacon,  3  Cush.  465 ;  Commonwealth  v.  Cox,  36  Penn.  St.  442. 

3  Potter  V.  State,  23  Ind.  550. 

*  Loring  v.  Bacon,  3  Cush.  465 ;  Bell  v.  Jasper,  2  Ired.  Eq.  597 ;  Ilutchcraft 
V.  Shrout,  1  Monr.  206;  Jones  v.  Blanton,  6  Ired.  Eq.  115;  Anmions  v.  People, 
11  111.  6. 

5  Wood  V.  Washburn,  2  Pick.  24. 

6  Howe  V.  Peabody,  2  Gray,  656. 

[527] 


*  493  GUARDIAN   AND  WARD. 

bond.i  And  the  usual  rule  is  that  no  more  than  the  penal 
sum  named  in  the  bond  can  be  recovered  upon  it  unless  it  be 
by  way  of  interest  or  costs. ^ 

Where  real  estate  has  been  sold  by  a  guardian  and  the  pro- 
ceeds remain  unaccounted  for  at  the  expiration  of  his  trust,  it 
is  a  question  whether  the  sureties  on  his  general  bond  shall 
be  held  responsible,  or  those  on  the  special  bond  given  for  sale 
of  the  real  estate.  The  best  authority  is  in  favor  of  charging 
the  latter  and  not  the  former  sureties  for  the  guardian's  mis- 
application of  such  moneys.^  The  present  rule  in  Massachu- 
setts, where  a  guardian  who  has  been  licensed  to  sell  real  estate 
for  the  purpose  of  investment,  fails  to  invest,  and  charges 
himself  instead,  in  his  accounts,  with  the  proceeds  and  inter- 
est from  year  to  year,  is  to  hold  him  responsible  for  the  pro- 
ceeds of  the  sale  upon  his  special  bond,  but  for  the  interest 
upon  his  general  bond.^  The  omission  to  give  a  special  bond 
for  the  sale  of  real  estate  is,  on  the  foregoing  principles,  no 
breach  of  the  guardian's  general  bond. 

*  494       *  One  of  the  probate  guardian's  first  duties  after  his 

appointment  is  to  file  an  inventory  of  the  ward's  effects. 
This  is  a  schedule,  prepared  by  discreet  and  disinterested  per- 
sons, and  verified  by  their  oatt,  wherein  the  amount  of  the 
ward's  estate,  both  real  and  personal,  together  with  the 
separate  items,  are  duly  entered  at  a  just  valuation.  The 
inventory  serves  as  the  basis  of  the  guardian's  accounts  and 
primarily  fixes  his  liability.  Here  again  the  statute  relative 
to  infants  borrows  from  the  long  established  practice  of  the 
English  ecclesiastical  courts,  with  regard  to  executors  and 
administrators.  But  one  inventory  is  in  general  necessary  ; 
and,  if  subsequent  effects  come  to  the  guardian's  hands,  he 
will  place  them  in  his  accounts  to  the  ward's  credit.     It  is  to 

1  Brazier  v.  Clark,  5  Pick.  96 ;  Sparliawk  i'.  Buell's  Adm'r,  9  Vt.  41 ;  Boyd 
V.  Boyd,  1  Watts,  365.     But  see  Williams  v.  Harrison,  19  Ala.  277. 

2  Tyson  v.  Sanderson,  45  Ala.  364 ;  Schouler  Pers.  Prop.  465-470. 

3  Williams  v.  Morton,  38  Me.  47  ;  Brooks  v.  Brooks,  11  Cush.  22;  Potter  v. 
State,  28  Ind.  607  ;  contra.  Fay  v.  Taylor,  11  Met.  529 ;  Henderson  v.  Coover,  4 
Nev.  429 ;  Withers  v.  Hickman,  6  B.  Monr.  292.  See  Andrews'  Heirs  Case,  3 
Humph.  592. 

*  Mattoon  v.  Cowing,  13  Gray,  387.     See  Pratt  v.  McJunkin,  4  Rich.  5. 

[528] 


GUARDIAN'S  BOND,  INVENTORY,  AND  ACCOUNTS.  *  494 

be  observed  that  though  probate  inventories  are  prima  facie 
evidence  of  the  existence  of  assets  and  their  true  valuation, 
they  are  by  no  means  conclusive.  And  the  guardian  may 
show  in  rendering  his  accounts  that  he  was  not  chargeable 
with  certain  items  which  therein  appeared,  or  that  the  sale  of 
jDroperty  realized  less  than  its  appraised  worth ;  and  he  will 
be  credited  accordingi3^  On  the  other  hand,  property  omitted 
from  the  inventory  which  comes  within  the  guardian's  reach 
in  any  manner,  should  be  accounted  for,  as  well  as  all  gains 
realized  over  and  above  the  appraisers'  valuation.  During 
the  long  period  for  which  a  guardian's  authority  frequentlv 
lasts,  the  inventory  may  become  of  little  practical  consequence, 
except  as  furnishing  for  himself  the  starting-point  in  his  sys- 
tem of  accounts,  and  determining,  for  the  convenience  of 
others  interested,  the  fact  and  extent  of  his  original  liability. 
And  as  the  ward's  real  estate  is  to  be  i:)reserved  intact  unless 
a  sale  is  ordered,  the  guardian's  account,  like  that  of  an  ad- 
ministrator, usually  in  this  country  starts  with  the  amount  of 
personal  estate  according  to  the  inventory,  taking  into  his 
reckoning  only  the  income  and  expenditures  from  the  real 
estate  until  some  sale  of  land  is  actually  made.  If  two  or 
more  persons  under  guardianship  are  interested  in  different 
property,  or  have  unequal  interests  in  the  same  property, 
separate  schedules  should  be  rendered  for  each.^ 

The  accounts  of  guardians  are  in  England  subject 
to  the  *  direction  of  the  Court  of  Chancery.  Guardi-  *  495 
ans  and  receivers  who  have*  entered  into  recognizance 
as  officers  of  the  court  are  compelled  to  present  their  accounts 
on  application  made  by  any  person  interested.  Such  proceed- 
ings are  by  petition,  or  on  motion  fded.  Receivers  are  ex- 
pected to  pass  their  accounts  regularly,  and  a  guardian  is 
compelled  to  account  by  enforcing  his  recognizance.  The 
common  rules  as  to  executors  and  trustees  apj)ly  to  guardians. 

1  Matter  of  Seaman,  2  Paige,  409 ;  Hooker  v.  Bancroft,  4  Pick.  50 ;  :Mass. 
Gen.  Sts.  c.  100,  lOy ;  State  v.  Stewart,  36  Miss.  652 ;  Clark  v.  Whitaker,  18 
Conn.  548 ;  Fuller  v.  Wing,  5  Shep.  222  ;  Green  v.  Johnson,  3  Gill  &  Johns.  388. 
And  see,  as  to  inventories  generally,  1  Wms.  Ex'rs,  878-883  ;  2  Redf.  Wills.  200- 
205. 

34  [  529  ] 


*  495  GUARDIAN  AND  WARD, 

But  unless  there  is  misconduct  shown,  the  guardian  need  not 
show  specifically  how  he  has  used  the  sum  allowed  as  main- 
tenance. A  receiver's  accounts  are  sometimes  examined  on 
application  of  strangers.  Mr.  Macpherson  says  that  there  is 
scarcely  a  modern  instance  to  be  found  where  an  account  has 
been  taken  from  a  guardian  without  suit.^  In  like  manner, 
equity  treats  as  guardians  all  persons  who  take  possession  of 
an  infant's  estate,  whether  duly  authorized  to  act  or  not,  and 
obliges  such  persons  to  account  on  application  made  by  the 
infant  himself,  or  on  his  behalf.^ 

Courts  of  equity  in  this  countr}'-  are  doubtless  authorized 
to  entertain  like  proceedings  against  all  quasi  guardians.^ 
But  under  our  statutes  probate  guardians,  duly  appointed, 
are  invariably  made  liable  to  account,  in  the  first  instance,  to 
the  local  court  issuing  letters  of  guardianship,  which  thus 
becomes,  in  fact,  the  general  depositor}^  of  accounts  relative 
to  the  estates  of  deceased  persons  and  wards. 

An  important  distinction  is  observable  in  the  American 
practice  concerning  the  accounts  of  probate  guardians,  be- 
tween the  final  account  and  those  rendered  from  time  to  time 
pending  the  minority  of  the  ward.  The  rule  is  that  these  in- 
termediate accounts,  although  judicially  approved  and  passed, 
are  by  no  means  conclusive.  They  serve  to  show  the  guar- 
dian's liability  and  to  keep  the  court  informed  of  the  general 
condition  of  the  trust  funds,  to  determine  when  the  guardi- 
an's bond  should  be  increased,  and  to  ascertain  as  to 

*  496    *  the  propriety  of  sales  and  investments.    Such  accounts 

remain  |)rima/acie  evideifce  of  the  sum  of  the  guar- 
dian's indebtedness  to  his  ward,  but  nothing  more.  The  privi- 
lege remains  to  the  ward,  as  we  shall  notice  in  the  next  chap- 
ter, of  disputing  their  accuracy  when  he  comes  of  age.  But 
on  the  final  account  of  the  guardian,  which  is  to  be  rendered 
at  the  expiration  of  his  trust,  the  question  comes  before  the 
court  as  to  the  general  fairness  of  his  management,  and  items 
allowed  in  former  accounts  may  then  be  stricken  out  as  im- 

1  Macphers.  Inf.  108 ;  ib.  259,  348. 

2  Macphers.  Inf.  269 ;  Story  Eq.  Juris.  §  1195 ;  Morgan  v.  Morgan,  1  Atk. 
489. 

^  Chaney  v.  Smallwood,  1  Gill,  367;  infra,  p.  606. 

[  530] 


GUARDIAN'S  BOND,  INVENTORY,   AND   ACCOUNTS.    *  496 

proper.  The  reason  of  this  is  that  the  cestui  que  trust  had  no 
earlier  opportunity  of  judging  as  to  the  correctness  of  the 
trustee's  accounts,  and  ascertaining  that  final  balance,  which 
is,  after  all,  the  estate  in  controversy.  So,  too,  a  guardian  in 
his  final  account  should  be  allowed  to  correct  errors  to  his 
prejudice  satisfactorily  proved  to  exist  in  his  prior  accounts.^ 
But  the  final  account,  once  examined  and  approved  hy  the 
court,  and  not  reversed  on  appeal,  the  ward's  period  of  ob- 
jecting to  the  same  having  also  expired  by  limitation,  such 
account,  together  with  all  which  preceded  it,  concludes  all 
parties  interested,  and  cannot  be  reopened  in  anj  court ; 
certainly  not  unless  for  fraud,  or  manifest  error :  perhaps  in 
most  States  not  at  all.^ 

With  probate  guardians  it  is  the  usual  practice  to  present 
accounts  with  vouchers  annually,  and  in  some  States  once  in 
three  years,  or  as  otherwise  directed  by  the  court,  the  parties 
in  interest  other  than  the  ward  having  been  first  cited,  unless 
their  approval  appears  upon  the  face  of  the  account.  The 
account  is  considered  by  the  court  and  passed  after  due  exam- 
ination, upon  the  oath  of  the  guardian.  The  vouchers  are 
retained  hj  the  guardian,  but  the  account  is  recorded  and 
filed  in  the  court.  The  accounts  of  wards  having  different 
interests  in  property  should  be  rendered  separately .^  But 
the  fact  that  a  guardian  of  two  wards  invested  on  their  joint 
account  without  distinguishing  their  several  interests,  is  no 
reason  why  the  investments  should  be  disallowed,  if  suffi- 
ciently for  each  ward's  benefit.*  In  some  States  the  guar- 
dian's final  account  must  embrace  all  items  contained  in  his 
prior  accounts,  and  not  begin  with  the  balance  on  the  last 
one  ;  but  the  practice  in  this  respect  is  not  uniform  in  the 

1  Crump  V.  Gerock,  40  Miss.  765 ;  Burnham  v.  Dalling,  1  C.  E.  Green,  144  ; 
Willis  V.  Fox,  25  Wis.  046 ;  Blake  v.  Pegram,  101  Mass.  592. 

2  Boynton  t'.  Dyer,  18  Pick.  1 ;  Diaper  v.  Anderson,  37  Barb.  168  ;  Manning  v. 
Baker,  8  Md.  44  ;  Allman  v.  Owen,  31  Ala.  167;  Reynolds  v.  Walker,  29  Miss. 
250 ;  State  v.  Strange,  1  Cart.  538  ;  Stevenson's  Appeal,  32  Penn.  St.  318  ; 
Brent  v.  Grace's  Adm'r,  30  Mis.  253  ;  Seaman  v.  Duryea,  1  Kern.  324 ;  Yeager's 
Appeal,  34  Penn.  St.  173  ;  Lynch  v.  Rotan,  39  111.  14. 

3  Armstrong  v.  Walkup,  9  Gratt.  372 ;  State  v.  Foy,  65  N.  C.  265. 
*  Nance  v.  Nance,  1  S.  C.  n.  s.  209. 

[531] 


*  496  GUAEDIAX   AXD   WARD. 

United  States.^      Guardians   sometimes  make  settle- 

*  497    ment  out  of  court,  rendering  no  returns,  but  *  this 

practice  is  not  common  where  the  infant's  estate  is 
large  ;  nor  is  it  safe,  since  the  failure  to  account  is  a  breach 
of  the  guardianship  bond,  and  renders  the  sureties  and  the 
guardian  himself  liable.  Any  part}'  in  interest  may  compel 
the  guardian  to  present  his  accounts  years  after  the  guardian- 
ship is  at  an  end,  notwithstanding  he  has  a  receipt  in  full 
from  the  ward ;  for  no  mere  lapse  of  time  can  be  set  up 
against  a  trust,  except  that  the  usual  limitation  to  suits  on 
specialties  might  determine  the  remedies  of  parties  aggrieved 
as  against  the  guardian  and  his  sureties.^  But  lapse  of  time, 
taken  in  connection  with  other  circumstances,  showing  a  due 
execution  of  the  trust,  will  be  favorably  regarded  ;  and  the 
guardian's  account  need  not  then  be  so  strictly  made  up  and 
proved,  as  would  be  otherwise  necessary.^  Where  no  effects 
have  come  to  the  guardian's  possession  or  knowledge,  he  need 
not  file  either  inventor}^  or  account ;  but  so  soon  as  there  is 
property  his  liability  becomes  fixed ;  and  he  cannot  be  ex- 
empted from  account  on  the  ground  that  the  ward's  estate 
does  not  more  than  balance  his  own  outlays  and  expenses. 
The  final  account  is  not  allowed  by  the  court,  until  the  ward 
has  had  the  opportunitj"  of  examining  it.'*  But  on  the  ter- 
mination of  a  guardian's  trust,  pending  the  infancy  of  the 
ward,  a  final  account  is  sometimes  allowed  after  due  notice  to 
parties  interested,  and  examination  by  a  suitable  guardian  ad 
litem  on  the  ward's  behalf ;  not  however  so  as  to  debar  the 
ward  from  disputing  the  account  afterwards  on  reaching 
majority.'^ 

Where  the  same  person  is  both  executor  of  the  parent's 
estate  and  guardian  of  the  infant  heir,  he  should  first  settle 
his  executor's  account,  and  then  transfer  the  balance  by  way 

■     1  Foltz's  Appeal,  55  Penn.  St.  428. 

2  Clarke  v.  Clay,  11  Fost.  393  ;  Bard  v.  Wood,  3  Met.  74;  Crain  v.  Barnes,  1 
Md.  Ch.  151 ;  Wade  v.  Lobdell,  4  Cush.  510  ;  Gilbert  r.  Guptill,  34  111.  112. 

3  Gregg  V.  Gregg,  15  N.  H.  190 ;  Pierce  v.  Irish,  31  Me.  254. 

i  Woodbury  v.  Hammond,  -54  Me.  332 ;  Whitney  v.  Whitney,  7  S.  &  M.  740.  • 
s  See  Smith  Prob.  Pract.  182;  Eacouillat  v.  Requena,  36  Cal.  651 ;  Blake  v. 
Pegram,  101  Mass.  592. 

[532] 


GUARDIAN'S  BOND,  INVENTORY,  AND  ACCOUNTS.     *  497 

of  distributive  share  to  the  account  of  guardianship.^  Ac- 
counts of  joint  guardians  may  generally  be  rendered 
on  the  oath  of  one  *  of  them.'^  Where  a  guardian  *  498 
dies,  resigns,  or  is  removed,  his  final  account  must  be 
presented,  and  it  is  the  successor's  duty  to  see  that  the  former 
guardian  is  held  to  a  strict  compliance  with  his  bond  ;  since 
otherwise  he  may  make  himself  lia1)le  to  the  ward.  The 
final  account  of  a  deceased  guardian  is  properly  presented  by 
his  personal  representatives,  who  may  be  cited  into  court  for 
that  purpose  ;  but  for  a  deficit  beyond  the  actual  assets  in 
their  hands,  the  sureties  must  answer.-^  Hence  the  adminis- 
trator of  a  deceased  surety  has  been  sometimes  permitted  to 
supply  the  missing  final  account.^  The  administrator  of  a 
deceased  guardian  cannot  invest  the  ward's  funds ;  nor  can 
he  discharge  the  guardian's  general  indebtedness  by  setting 
apart  certain  effects  of  the  guardian's  estate  for  that  purpose.^ 
Where  a  guardian  absents  himself  and  has  left  an  attorney 
in  charge  of  the  estate,  such  attorney  may,  in  Pennsylvania, 
be  summoned  by  the  court.^  It  would  appear  that  a  guar- 
dian cannot  be  cited  to  render  a  final  account  before  the 
ward's  majority,  unless  his  trust  has  been  first  determined ; 
and  that  his  balances  should,  in  such  case,  be  paid  to  a  suc- 
cessor and  not  to  the  court.' 

The  decree  of  the  court  allowing  a  partial  account,  Mdierein 
an  item  is  omitted  or  improperly  stated,  does  not  relieve  the 
guardian  from  liability  for  the  error  on  his  subsequent  ac- 
counts. He  must  make  the  necessary  correction  as  soon  as 
possible.  If  notes  are  inventoried  and  the  guardian's  ac- 
counts do  not  charge  him  therein  with  the  interest  thereon, 

1  Conkey  v.  Dickinson,  13  Met.  51 ;  ^Nlattoon  i\  Cowing,  13  Gray,  387  ; 
O'Hara  v.  Shepherd,  3  Md.  Ch.  306 ;  Crenshaw  v.  Crenshaw,  4  Rich.  Eq.  14 ; 
State  V.  Tunneil,  5  Harring.  94 ;  Runkle  v.  Gale,  3  Halst.  Ch.  101 ;  9  Rich.  Eq. 
408. 

-  See  Mass.  Gen.  Sts.  c.  101. 

3  Gregg  y.  Gregg,  15  N.  H.  190;  Royston  v.  Royston,  29  Geo.  82;  Peck  v. 
Braman,  2  Blackf.  141;  Waterman  v.  Wright,  36  Vt.  164;  Farnswortli  v.  Oli- 
phant,  19  Barb.  30  ;  State  v.  Grace,  26  Mis.  87  ;  Hemphill  v.  Lewis,  7  Bush,  214. 

*  Curtis  V.  Bailey,  1  Pick.  198. 

5  Moorehead  v.  Orr,  1  S.  C.  n.  s.  304.  And  see  supra,  p.  426  ;  Clark  i-.  Tomp- 
kins, 1  S.  C.  N.  s.  119. 

6  Petition  of  Getts,  2  Ashm.  441.  ^  Hughes  v.  RingstafT,  11  Ala.  564. 

[  533  ] 


*498  GUARDIAN  AND  WARD. 

or  credit  him  with  their  loss  as  worthless,  the  presumption  is 
that  he  has  embezzled  the  property  or  else  neglected  to  make 
collections  ;  and  in  either  case  he  is  chargeable  for  the  full 
amount.^  The  accounts  should  include  only  transactions 
between  guardian  and  ward,  and  should  terminate  with  the 

expiration  of  the  trust ;  since  the  relation  is  in  other 
*  499    respects  as  between  debtor  and  creditor .^    *  Valuations 

should  be  reduced  to  the  lawful  standard  ^f  currency.^ 
All  items  are  not  necessarily  proved  by  vouchers  ;  small 
charges  may  be  allowed  on  the  guardian's  oath  ;  and  oral 
proof  is  frequently  admissible  as  in  the  settlement  of  other 
probate  accounts. 

We  have  anticipated  in  former  chapters  the  general  princi- 
ples on  which  guardians  are  considered  liable  in  the  settle- 
ment of  their  accounts :  as  for  instance  the  payment  of  interest 
on  sums  not  invested,  losses  of  money  and  failure  to  collect 
debts  ;  also  the  proper  allowance  for  maintenance  and  edu- 
cation of  infants ;  and  other  matters  which  come  before  our 
courts  of  probate  jurisdiction  when  the  accounts  are  presented 
for  approval.  As  the  guardian  is  allowed  his  costs  and  ex- 
penses in  suits  on  the  ward's  behalf,  so  he  may  charge  bills 
of  professional  counsel  properly  paid ;  and  this  too  when  the 
charge  was  fairly  occasioned  by  a  contest  over  his  accounts, 
which  he  defended  ;  but  he  cannot  make  the  estate  pay  for 
advice  and  services  rendered  on  his  own  account  under  any 
colorable  pretext."*  Interest  has  been  allowed  on  sums  of 
money  necessarily  advanced  by  him  to  his  ward ;  and  this 
seems  reasonable.^  And  he  is  to  be  reimbursed  for  all  rea- 
sonable and  proper  expenses  incurred  by  him  in  the  manage- 
ment of  his  ward's  estate.  As  to  the  guardian's  own  charges 
for  the  maintenance  of  wards,  there  can  be  no  question  that 
he  is  neither  obliged  to  maintain  his  wards  at  his  own  expense, 
nor  justified  in  appropriating  their  earnings  to  himself.     But 


1  Starrett  v.  Jameson,  29  Me.  504. 

2  Cunningliam  v.  Cunningliam,  4  Gratt.  43  ;  Crowell's  Appeal,  2  Watts,  295. 

3  See  McFarlane  v.  Randle,  41  Miss.  411  ;  Neilson  v.  Cook,  40  Ala.  498. 

*  McElhenny's  Appeal,  46  Penn.  St.  347  ;  Alexander  v.  Alexander,  8  Ala. 
796 ;  Neilson  v.  Cook,  40  Ala.  498 ;  State  v.  Foy,  65  N.  C.  265. 

5  Hayward  v.  Ellis,  13  Pick.  272.     But,see  Evarts  v.  Nason,  11  Vt.  122. 

[  534  ] 


GUAKDIAN'S   BOND,  INVENTORY,   AND   ACCOUNTS.     *  499 

as  the  services  of  children  and  the  cost  of  their  board  are 
always  mutual  oifsets,  the  courts  are  reluctant  to  allow 
charges  of  this  sort,  for  or  against  a  guardian  who  brings  up 
his  Avard  in  his  own  family  ;  more  especially  where  the  claim 
seems  to  have  been  made  up  from  after-thought,  and  without 
previous  stipulation.  Intention,  on  his  part,  to  maintain  the 
ward  gratuitously  may  be  inferred  from  circumstances.  In 
this  se«se,  we  understand  certain  dicta  of  the  courts  to 
the  effect  that  a  guardian  cannot  *  charge  for  board  *  500 
where  he  has  offered  to  bring  up  the  ward  at  his  home 
free  of  expense ;  for  it  is  to  be  supposed  that  there  is  mutual- 
ity in  all  contracts,  and  that  reasonable  notice  might  termi- 
nate any  liability  which  had  no  fixed  limit.^  Like  principles 
are  applicable  to  demands  against  the  guardian  for  his  ward's 
services,  which  courts  in  different  States  have  frequently  had 
occasion  to  consider.^  A  probate  guardian,  who  is  step-father 
to  his  wards,  will  usually  be  presumed  to  stand  to  them  in 
the  place  of  a  father,  so  far  as  liability  for  their  support  and 
a  right  to  their  services  are  concerned  ;  and  this  rule  may 
apply  where  he  occupies  their  house  for  many  years .^  But 
there  are  circumstances  under  which  a  guardian's  promise  to 
the  ward  not  to  charge  him  for  board  would  be  void  for  want 
of  consideration.* 

A  guardian  who  advances  money  for  his  ward  over  and 
above  the  income  of  his  estate,  in  order  to  set  him  up  in  busi- 
ness, without  obtaining  leave  of  the  court,  cannot  charge  his 
ward  with  it.^ 

One  rule  has  always  prevailed  in  England  as  to  the  com- 
pensation of  executors,  guardians,  and  other  trustees ;  namel}', 
that  the  services  rendered  should   be   treated  as  honorary 

1  Manning  v.  Baker,  8  Md.  44 ;  Armstrong  v.  Walkup,  9  Gratt.  372 ;  Hayden 
V.  Stone,  1  Duv.  396;  Hendry  v.  Hurst,  22  Geo.  312;  Cunningham  ;;.  Pool,  9 
Ala.  G1.5.  Owen  v.  Peebles,  42  Ala.  338,  recognizes  a  guardian's  claim  for  keep- 
ing liis  ward's  horse  in  a  proper  case. 

^  Phillips  V.  Davis,  2  Sneed,  520  ;  Calhoun  r.  Calhoun,  41  Ala.  369  ;  Crosby 
V.  Crosby,  1  S.  C.  n.  s.  337  ;  Armstrong  v.  Walkup,  12  Gratt.  608.  Among  the 
miscellaneous  items  which  have  been  allowed  a  guardian  in  his  accounts  maybe 
mentioned  that  of  hnna  fide  expenses  incurred  in  removing  the  ward  to  another 
State.     Cummins  v.  Cummins,  29  111.  4.52. 

3  Mulhern  v.  McDavitt,  16  Gray,  404.     And  see  supra,  p.  378. 

*  Keith  V.  Miles,  39  Miss.  442.  ^  ghaw  v.  Coble,  63  N.  C.  377. 

[535] 


*500  GUARDIAN  AND  VfARD. 

and  gratuitous.  Chancery  makes  no  allowance  of  any  sort 
beyond  a  reimbursement  for  the  necessary  expenses  actually 
incurred.  However  much  the  honor  of  being  trusted  may  be 
deemed  a  fair  equivalent  for  the  guardian's  time,  trouble,  and 
responsibility,  it  is  not  found  to  suffice  for  receivers  and  other 
officers  of  the  Court  of  Chancery,  whose  fees  may  in  some 
measure  tend  sensibly  to  diminish  the  ward's  sense  of  grati- 
tude to  the  custodians  of  his  fortune.  It  is  found  necessary 
to  allow  compensation  to  trustees  in  some  of  the  British  colo- 
nies in  order  to  induce  suitable  men  to  accept  office  ;  and 
even  in  the  English  courts  at  the  present  day  there  is  a 
strong  inclination  to  multiply  exceptions  to  the  general  rule. 
Considerations  of  policy  are  alleged  in  support  of  the  estab- 
lished doctrine  of  chancery;  but  the  arguments  seem  not 
unanswerable.  In  this  country  compensation  is  allowed  the 
guardian,  while  the  probate  court  fees  are  usually  trifling  in 
comparison.  And  it  does  not  appear  that  the  English  rule  as 
to  the  gratuitous  services  of  trust  officers  was  ever  adopted 
in  a  single  State. ^ 

1  See  Story  Eq.  Juris.  §  1268,  and  n. ;  and  §  1268  «  ;  2  Redf.  Wills,  890-892 ; 
2  Wms.  Ex'rs.  1682-1685,  and  cases  cited.  In  some  parts  of  this  country,  custom 
or  the  local  law  has  established  a  commission  as  the  guardian's  compensation. 
In  others,  the  statute  allows  what  the  court  may  deem  just  and  reasonahle.  The 
commission  allowed  the  guardian  has  varied,  according  to  different  decisions  and 
under  special  circumstances,  all  the  way  from  one  to  ten  per  cent,  which  last  may 
be  considered  the  maximum.  Holcombe  v.  Holcombe,  2  Beasl.  415 ;  In  re  Har- 
land's  Accounts,  5  Rawle,  323  ;  Walton  v.  Erwin,  1  Ired.  Eq.  136 ;  Armstrong  v. 
Walkup,  12  Gratt.  608.  In  New  York,  the  rule  established  for  trustees  is  five 
per  cent  on  sums  not  exceeding  one  thousand  dollars ;  half  that  amount  upon  all 
sums  between  that  and  five  thousand  dollars  ;  and  one  per  cent  on  all  sums  ex- 
ceeding that  amount.  Matter  of  Roberts,  3  Johns.  Ch.  43.  And  this  rule  prac- 
tically obtains  in  many  other  States.  One-half  the  commission  is  reckoned  for 
sums  received,  and  one-half  for  sums  disbursed.  They  are  to  be  computed  by  a 
guardian  at  the  foot  of  partial  accounts  or  about  the  time  of  actual  receipt  and 
disbursement,  and  not  when  they  are  brought  forward  upon  his  final  account. 
Huffer's  Appeal,  2  Grant,  341 ;  Vanderheyden  v.  Vanderheyden,  2  Paige,  287. 
Where  commissions  at  the  court's  discretion  are  allowed,  special  services  per- 
formed by  the  guardian  may  be  considered  in  fixing  the  rate  of  commission,  but 
not  as  an  additional  charge.  Yet  it  is  justly  observed  in  a  Pennsylvania  case, 
that  since  the  guardian  is  a  trustee  for  custody  and  management,  and  not,  like  an 
executor,  merely  for  distribution,  what  is  allowable  to  the  one  may  not  always 
suffice  for  tlie  other.  McElhenny's  Appeal,  46  Penn.  St.  347.  Even  in  New 
York  tlie  unfairness  of  an  inflexible  rule,  applicable  to  all  who  hold  trust  moneys, 
has  led  to  the  assertion  of  a  doctrine  in  a  recent  case,  which  threatens  to  disturb 

[536] 


GUARDIAN'S  BOND,   INVENTORY,  AND  ACCOUNTS.     *  501 

*  For  the  default  and  misconduct  of  the  guardian  the    *  501 
proper  remedy  is  by  suit  on  the  probate  bond.     And 
such  suits  are  brought  in  tlie  name  of  the  judge,  or  the  State, 
according  to  the  requirements  of  statute,  for  the  bene- 
fit of  the  person  or  *  j)ersons  injured. ^     This  is   the    *  502 
usual  remedy  for  creditors  as  well  as  the  ward  himself 
and  his  next  of  kin ;  not,  however,  the  only  one  open  to  the 
former,  as  we  have  already  seen,  according  to  the  rule   of 
some  States.^     In  most  States,  the  guardian's  bond  cannot  be 
sued  until  he  has  been  summoned  before  the  court  to  account; 
nor  until  leave  of  the  court  has  been  first  obtained ;  except  in 
certain  cases  of  debts  which  appear  of  record.^     The  reason 
is  that  the  balances  due  from  the  guardian  and  the  extent  of 
his  liability  cannot  be  properly  ascertained  until  the  accounts 
are  presented.     So,  too,  while  the  guardian  may  sue  his  ward, 

the  chancery  rule,  formerly  consiilered  as  well  settled  ;  namely,  that  services  of 
a  professional  or  personal  character,  rendered  the  ward,  may  be  allowed  to  the 
guardian,  besides  the  usual  commission,  on  the  ground  that  they  were  rendered 
not  as  guardian  but  as  an  individual.  IMorgan  v.  Morgan,  39  Barb.  20.  In 
Maine,  Massachusetts,  and  other  States  where  the  court  allows  what  is  reasonable, 
the  guardian  may  cliarge  specific  sums  for  special  services,  instead  of  or  in  ad- 
dition to  a  commission,  provided  the  whole  does  not  exceed  a  fair  rate  of  com- 
pensation. Longley  v.  Hall,  11  Pick.  120;  Ratlibun  v.  Colton,  15  Pick.  471; 
Emefson,  Appellant,  32  Me.  159  ;  Dixon  v.  Homer,  2  Met.  420 ;  Roach  v. 
Jelks,  40  Miss.  754  ;  Evarts  v.  Nason,  11  Vt.  122.  The  ordinary  commission  is 
sometimes  refused  for  disbursement  of  the  guardian's  final  balance  to  the  ward, 
and  receipt  of  the  original  fund ;  nor  is  it  allowable  on  the  principal  in  mere  rein- 
vestments. Commissions  may  be  forfeited  by  the  guardian's  misconduct;  as 
where  the  fund  was  employed  in  his  own  business ;  but  not,  in  some  States,  for 
the  mere  omission  to  account  until  cited  in.  Clerk-hire  is  properly  charged  as 
an  expense  to  the  estate,  in  cases  of  magnitude  and  difficulty,  where  such  assist- 
ance is  required.  Vanderheyden  v.  Vanderheyden,  2  Paige,  287;  Knowlton  v. 
Bradley,  17  N.  H.  4-58;  Starrett  v.  Jameson,  29  Me.  504  ;  Royston  ;•.  Royston,  29 
Geo.  82  ;  Magruder  v.  Darnall,  G  Gill,  269  ;  Clowes  v.  Van  Antwerp,  4  Barb.  416  ; 
Reed  v.  Ryburn,  23  Ark.  47  ;  Neilson  v.  Cook,  40  Ala.  498 ;  Bond  v.  Lockwood, 
33  111.  212.  A  guardian  wlio  is  also  trustee  should  not  be  allowed  full  commis- 
sions on  both  his  guardian  and  trustee  accounts,  where  the  performance  of 
double  services  is  merely'  nominal.     Blake  v.  Pegrani,  101  Mass.  592. 

1  Davis  V.  Dickson,  2  Stew.  370 ;  Potter  v.  State,  23  Ind.  007  ;  Pearson  v. 
McMillan,  37  Miss.  588. 

'-  Supra,  pp.  456,  463,  n. 

3  Stilhvell  V.  Miles,  19  Johns.  304  ;  Bailey  v.  Rogers,  1  Greenl.  186;  Salisbury 
V.  Van  Hoesen,  3  Hill,  77  ;  Jarrett  v.  State,  5  Gill  &  Johns.  27 ;  Hunt  v.  White, 
1  Cart.  105 ;  Foteaux  v.  Le  Page,  6  Iowa,  123 ;  Amnions  v.  People,  11  III.  6 ; 
Pratt  V.  McJunkin,  4  Rich.  5 ;  Justices  v.  Willis,  3  Yerg.  401. 

[537] 


*502  GUARDIAN  AND   WARD. 

after  the  latter  attains  majority,  when  it  appears  that  the 
final  indebtedness  is  in  his  own  favor,  he  must  wait  until  the 
court  has  ascertained  and  decreed  its  amount.^  As  to  sure- 
ties, it  is  said  that  they  may  be  sued  without  a  previous  suit 
against  the  principal  ;  the  common-law  rule  that  an  executor 
must  first  be  found  guilty  of  devastavit  being  held  inappHcable 
to  guardians.2  To  all  suits  on  guardians'  bonds  there  is  a 
limitation  prescribed  by  law.  Thus  in  Massachusetts  the 
period  is  four  years  from  the  time  the  guardianship  termi- 
nates, whether  by  death,  removal,  or  resignation  of  the  guar- 
dian, or  the  arrival  of  the  infant  ward  at  full  age  ;  and  the 
same  rule  applies  to  general  and  special  bonds. ^  In  some 
other  States  the  period  is  five  years.^  In  Indiana,  it 
*  503  is  three  *years.^  Where  no  special  period  is  fixed  by 
law,  the  ordinary  limitation  to  suits  on  sealed  instru- 
ments must  be  held  to  apply.^ 

Suretie's,  as  well  as  the  guardian,  are  estopped  by  the 
recitals  in  the  guardianship  bond.'^  The}^  are  also  concluded 
b}'-  the  amount  adjudged  due  from  the  guardian  on  settlement 
of  his  accounts.^  They  cannot  become  parties  to  the  account- 
ing of  their  principal  either  in  the  original  proceedings  or  on 
revision.^  Where  sureties  are  compelled  to  respond  in  dam- 
ages for  the  default  of  their  guardian,  they  may  seek  indem- 
nity from  his  property.  Equity  also  allows  them  to  enforce 
contribution  as  among  themselves.  Thus,  if  co-sureties  on 
one  bond  pay  the  whole  amount  of  a  deficiency  they  may  use 
the  other  bond  to  obtain  a  proportional  reimbursement.^'^     So 

1  Sniitli  V.  Philbrick,  2  N.  H.  395;  Shollenberger's  Appeal,  21  Penn.  St.  337. 

2  Stater.  Strange,  1  Smith  (Ind.),  367  ;  Call  v.  Ruffin,  1  Call,  333 ;  1  Met.  (Ky.) 
22.  And  see  Horton  v.  Horton,  4  Ired.  Eq.  54 ;  Moore  i'.  Baker,  39  Ala.  704  ; 
Moore  v.  Hood,  9  Rich.  Eq.  311 ;  Potter  v.  Hiscox,  30  Conn.  508;  Clark  v.  Mont- 
gomery, 23  Barb.  464. 

3  Loring  i;.  Alline,  9  Cush.  68.  And  see  Favorite  v.  Booher,  17  Ohio  St. 
548. 

*  Johnson  v.  Chandler,  15  B.  Monr.  584. 

5  State  V.  Hughes,  15  Ind.  104. 

6  Ragland  i'.  Justices,  10  Geo.  65  ;  Woodbury  v.  Hammond,  54  Me.  332. 
^  Sasscer  v.  Walker,  5  Gill  &  Johns.  102. 

8  Commonwealth  v.  Rhoads,  37  Penn.  St.  60. 

9  In  re  Scott's  Account,  36  Vt.  297.     But  see  Curtis  v.  Bailey,  1  Pick.  198. 

10  Commonwealth  v.  Cox,  36  Penn.  St.  442. 

[638] 


GUARDIAN'S  BOND,  INVENTORY,  AND   ACCOUNTS.   *  503 

where  there  are  three  co-sureties,  and  one  proves  insolvent, 
the  surety  who  has  responded  in  damages  to  the  full  extent 
may  compel  his  solvent  co-surety  to  pay  him  one-half  of  the 
amount.^  A  surety  may  always  take  security  from  his  prin- 
cipal for  his  own  indemnity,  and,  if  default  occurs,  reimburse 
himself  from  the  principal's  own  property  like  any  other 
creditor.  But  it  stands  to  reason  that  the  surety  of  a  guar- 
dian cannot  secure  himself  by  any  pledge  of  the  M^ard's 
property ;  for  this  would  be  permitting  fraud  in  order  to 
prevent  fraud,  and  the  infant's  pretended  security  would  be 
to  him  no  security  at  all.^  In  a  suit  against  sureties  on  a 
guardianship  bond,  if  one  of  the  sureties  is  dead,  his  personal 
representatives  should  be  joined.^ 

1  Waller  v.  Campbell,  25  Ala.  5U.  See  State  v.  Paul's  Ex'r,  21  Mis.  51 ; 
Jamison  v.  Cosby,  11*  Humph.  273 ;  Hocker  v.  Wood,  33  Penn.  St.  4G6  ;  Haygood 
V.  McKoon,  49  Mis.  77. 

2  Poultney  v.  Randall,  9  Bosw.  232;  Foster  v.  Bisland,  23  Miss.  296;  Miller  r. 
Carnall,  22  Ark.  274 ;  Howell  v.  Cobb,  2  Cold.  104. 

3  Lynch  v.  Rotan,  89  111.  14. 


[539] 


*  504  GUARDIAN   AND   WARD. 


*504  *  CHAPTER   IX. 

RIGHTS    AND    LIABILITIES    OP    THE    WARD. 

Having  treated  at  length  of  the  rights  and  liabilities  of 
guardians,  their  appointment  and  removal,  and  the  settlement 
of  their  acconnts,  it  only  remains  for  us  to  consider  the  powers 
and  duties  of  the  ward  himself.  Some  of  these  have  been 
already"  noticed  incidentally ;  others,  so  far  as  minor  wards 
are  concerned,  fall  within  the  general  scope  of  Infancy ;  but 
a  few  legal  principles  remain  for  discussion  under  the  present 
head,  to  which  we  shall  now  direct  the  reader's  attention. 

There  is  a  distinction  to  be  drawn  between  infant  wards, 
and  insane  jDersons  or  spendthrifts  under  guardianship.  As 
to  the  former,  the  law  recognizes  a  growing  responsibility,  as 
it  were,  on  their  part ;  a  postponement  of  many  rights  and 
duties  to  the  period  of  maturity,  but  not  utter  and  total  sus- 
pension or  loss.  Hence,  sales  made  and  contracts  performed 
while  an  infant  ward's  disabilities  last  are  frequently  held 
subjected  to  his  future  approval,  being  treated  as  neither 
absolute  nor  yet  void  in  the  mean  time.  Hence  is  that  prin- 
ciple of  election  so  constantly  asserted  at  law  on  his  behalf ; 
hence,  too,  the  right  he  exercises  when  of  age  of  j)assing  in 
review  accounts  old  and  almost  forgotten,  to  ascertain  the 
balance  justly  due  him.  But  as  to  insane  persons  and  spend- 
thrifts, their  responsibilities  are  for  the  time  blotted  out ;  the 
disability  may  be  temporary  or  it  may  be  permanent ;  but 
while  it  lasts  it  is  complete ;  and  it  may  be  essential  that 
transactions  on  their  behalf  should  stand  or  fall,  irrespective 
of  their  choice,  and  be3*ond  the  possibilit}'  of  their  future 
interference.  This  suggestion  we  throw  out  simply  by  way 
of  caution;  for  while  the  same  principles  are  con- 
*  505  stantly  *  applied  by  inference  to  all  wards  alike,  it  is 
unsafe  to  draw  broad  conclusions  or  argue  with  confi- 
[  540  ] 


RIGHTS  AND   LIABILITIES   OF  THE   WARD.  *  505 

clence  from  mere  analogies  between  these  different  classes 
of  wards. ^ 

Thns  it  is  asked  whether  an  insane  person  under  guardian- 
ship can  make  a  will,  if  in  fact  compos  mentis.  Clearly,  ques- 
tions of  mental  capacity  and  undue  influence  ma}"  arise 
whenever  a  will  is  presented  for  probate.  And  prima  facie 
an  insane  person,  if  not  a  spendthrift,  under  guardianship,  is 
non  compos  mentis,  and  his  testamentary  capacit}"  may  well  be 
doubted.  It  is  settled,  however,  in  the  State  of  Massachu- 
setts that  a  valid  will  may  be  executed  by  a  person  under 
such  guardianship,  notwithstanding  the  circumstances  of  his 
situation  ;  the  fact  of  testamentary  capacity  at  the  date  of 
execution  being  open  to  proof.^  As  to  the  contract  of  a 
sj)endthrift  or  insane  person  made  before  he  was  placed  under 
guardianship,  the  law  favors  the  guardian's  right  of  disaffirm- 
ance to  a  certain  extent,  notwithstanding  the  ward  was  an 
adult  when  the  contract  was  made ;  on  the  ground,  appar- 
ently, that  the  person  now  a  ward  was  not  fit  to  make  a  con- 
tract in  his  own  right  which  should  bind  his  estate.^  And 
yet  the  rule  here  must  differ  greatly  from  that  aj^plicable  to 
infants. 

For  assault  and  battery,  a  ward,  like  all  other  persons,  is 
entitled  to  damages.  But  where  his  guardian  is  the  offender, 
there  are  technical  difficulties  in  the  way  of  maintaining  a 
suit.  Many  authorities  allow  an  infant  to  sue  his  guardian 
by  next  friend ;  but  a  spendthrift,  it  is  said,  cannot  do  so. 
His  remedy  may  be  found  in  getting  the  guardian  removed 
for  misconduct  and  securing  the  appointment  of  a  successor, 
or  perhaps  obtaining  his  discharge  from  guardianship  alto- 
gether. An  action  can  then  be  brought  by  himself  or  the 
new  guardian,  as  the  case  may  be.  The  guardian  may  in  all 
cases  be  held  criminally  responsible  for  the  injury  committed.* 

1  Thus,  in  Vermont,  it  is  held  that  a  spendthrift  may  be  compelled  to  give 
security  to  the  town  of  his  settlement  against  loss  by  his  becoming  chargeable 
afterwards  as  a  pauper,  as  a  condition  for  his  release  from  guardiansliip.  Wil- 
liston  V.  White,  11  Vt.  40. 

-  Breed  v.  Pratt,  18  Pick.  115. 

3  Coombs  V.  Janvier,  2  Vroom,  240 ;  Cliandlcr  v.  Simmons,  97  Mass.  508. 
But  see,  as  to  the  wife's  agency  to  manage  liis  business,  ^Motley  v.  Head,  43  Vt. 
633.  *  Mason  v.  Mason,  19  Pick.  506. 

[  541  ] 


*  505  GUARDIAN  AND  WARD. 

A  guardian  may  be  restrained  by  injunction  from  commit- 
ting waste.  So  he  is  responsible  for  damages  thus  occasioned ; 
and  it  has  been  held  that  a  judgment  against  sureties  on  the 
guardian's  bond  for  waste  committed  by  the  guardian  will  not 
before  satisfaction  bar  a  suit  by  the  ward  against  one  who  par- 
ticipated in  the  waste.^    The  ward  may  also  sue  for  use 

*  506    and  *  occupation,  although  he  has  a  general  guardian.^ 

Where  one  assumes  to  be  guardian  or  agent  of  a  guar- 
dian, and  enters  an  infant's  lands,  the  latter  may  elect  to  treat 
him  as  a  wrong-doer,  and  bring  trespass,  or  charge  him  as  a 
guardian.^  So  where  a  guardian  wrongfully  holds  over.  But 
the  ward  cannot  sue  his  guardian  for  money  had  and  received. 
His  proper  course,  at  least  in  this  country,  is  to  institute  pro- 
ceedings for  the  latter's  removal,  and  then  to  sue  on  the  official 
bond.* 

Whenever  guardianship  has  been  terminated,  an  action  of 
account  lies  in  favor  of  the  ward.  And  this  action  is  brought 
by  the  new  guardian,  or  by  next  friend,  or  by  the  ward  him- 
self, if  the  period  of  his  legal  disability  has  expired.  While 
his  guardianship  continues,  chancery  permits  the  ward  by  next 
friend  to  file  his  bill  against  the  guardian  for  account.  But 
this  seems  to  apply  rather  to  chancery  than  probate  guar- 
dians ;  since  direct  proceedings  for  account  in  the  court  Avhich 
issued  letters  of  guardianship,  followed  by  removal  of  the 
guardian,  if  unfaithful,  and  suit  on  his  probate  bond,  afford 
the  infant  under  such  guardianship  an  ample  and  expeditious 
remedy.  But  for  chancery  guardians,  purely  testamentary 
guardians,  and  quasi  guardians,  the  more  expensive  and  com- 
plicated process  of  a  bill  in  equity  becomes  the  necessary 
resort.  And  this  in  England  is  still  the  usual  course  of  pro- 
cedure, while  in  the  United  States  it  has  gradually  gone  out 
of  use  or  has  been  abolished  altogether.^     But  in  some  cases 


1  Powell  V.  Jones,  1  Ired.  Eq.  337.  See  Bank  of  Virginia  v.  Craig,  6  Leigh, 
899  ;  Hill.  Injunctions,  412. 

^  Porter  v.  Bleiler,  17  Barb.  149.  See  Senseman's  Appeal,  21  Penn.  St.  331 ; 
Sawyer  v.  Knowles,  33  Me.  208.     And  see  Chilton  v.  Cabiness,  14  Ala.  447. 

3  Sherman  v.  Ballou,  8  Cow.  304 ;  Blomfield  v.  Eyre,  8  Bear.  250. 

4  Brooks  V.  Brooks,  11  Cush.  18. 

s  Monell  v.  Monell,  5  Johns.  Ch.  283 ;  Linton  v.  Walker,  8  Ela  144;  Swan  v 
[542] 


RIGHTS   AND   LIABILITIES   OF   THE   WARD.         *  506 

of  quasi  guardianship  in  this  country,  —  the  probate  court 
having  no  jurisdiction  at  all  in  the  premises,  —  a  quasi  ward 
on  reaching  full  age  has  been  allowed  to  sue  in  assumpsit  for 
money  in  the  quasi  guardian's  hands ;  for  here,  as  it  would 
appear,  the  old  action  of  account  was  always  proper.^ 

The  ward's  right  to  call  his  guardian  to  account  may  be 
barred  by  limitation.  In  Pennsylvania,  it  is  said  that  the 
same  principle  applies  as  in  other  legal  proceedings ;  and 
eighteen  years'  delay  after  the  ward  attains  majority  has  been 
held  fatal  to  a  suit.'^  But  in  Illinois  the  rule  is  differentl}" 
stated,  and  the  guardian's  liability  to  account  is  there 
considered  to  last  as  *  long  as  the  bond  continues  in  *  507 
force ;  the  citation  to  account  before  the  probate  court 
being  merely  a  means  .to  ascertain  delinquency  as  the  founda- 
tion of  a  suit,  and  not  of  itself  a  suit  at  law  or  in  equity .^ 
The  former  maybe  regarded  as  the  true  doctrine  for  chancery 
guardianship  ;  the  latter  for  probate  guardianship.  The 
guardian's  administrator  in  either  case  should  close  up  the 
trust  accounts,  if  not  already  settled,  before  he  makes  dis- 
tribution ;  since  he  may  otherwise  remain  liable  for  many 
years.^  But  in  most  States  the  general  subject  of  limitation 
in  all  trusts  is  regulated  by  statute. 

Courts  of  chancery  will  always  aid  the  ward  in  recovering 
property  embezzled,  concealed,  or  conveyed  away  in  fraud  of 
his  rights.  The  proper  mode  of  procedure  is  by  bill  in  equity. 
And  while  a  probate  guardian  suspected  of  fraud  should  be 
cited  to  account,  it  has  been  held  that  his  estate  being  in- 
solvent and  his  sureties  irresponsible,  it  is  not  necessary  for 
the  ward  to  sue  them  before  he  can  file  a  bill  to  recover  such 
property  as  he  can  trace.^  A  summary  process  in  the  nature 
of  an  inquisition  is  provided  by  statute  in  some  States,  for 

Dent,  2  Md.  Cli.  Ill  ;  Lemon  v.  Hansbarger,  6  Gratt.  301 ;  Macphers.  Inf.  259, 
348  ;  Fanning  v.  Chadwick,  3  Pick.  424  ;  Jones  v.  Beverly,  45  Ala.  IGl. 

1  Pickering  v.  De  Kocliemont,  45  N.  H.  67  ;  Field  v.  Torrey,  7  Vt.  372. 

2  Bones'  Appeal,  27  Penn.  St.  492.     See  Magruder  v.  Goodwin,  P.  &  II.  661. 

3  Gilbert  i;.  Guptill,  34  111.  112. 

*  Musser  v.  Oliver,  21  Penn.  St.  362.     See  Felton  v.  Long,  8  Ired.  Eq.  224 ; 
Mitchell  V.  Williams,  27  Mis.  399  ;  Pearson  v.  McMillan,  37  Miss.  588. 
5  Hill  V.  Mclntire,  39  X.  H.  410. 

[  '^^3  ] 


*  507  GUARDIAN  AND   WARD. 

ascertaining  the  whereabouts  of  stolen  and  missing  property 
belonging  to  wards,  by  means  of  which  all  suspected  persons, 
including  the  guardian  himself,  can  be  summoned  before  the 
probate  court  to  answer  lawful  inquiries  under  oath.^ 

Fraudulent  transactions  cannot  stand  as  against  the  ward. 
And  in  cases  of  this  sort,  equity  will  go  to  the  substance 
rather  than  the  form,  in  order  to  ascertain  the  real  motives 
of  one  who  professes  to  turn  over  trust  property  to  third  par- 
ties, and  will  do  equity  if  possible.  Where  a  guardian,  for 
instance,  transfers  a  note  with  words  importing  trust  to  his 
private  creditors  as  security  for  his  own  debt,  the  ward- 
can  follow  it  into  their  hands,  or  against  other  parties,  and 
stop   payment,  whether   sufficient   consideration   was 

*  508    *  paid   by  the   holder  or  not.^      But   in   all    cases  of 

this  sort,  third  parties  should  have  some  notice,  actual 
or  constructive,  of  the  existence  of  a  trust ;  otherwise  they 
cannot  be  made  to  suffer  loss  further  than  the  usual  rules  of 
stolen  property  apply .^  Rights  of  wards  to  real  estate  are 
frequently  protected  on  these  principles.  Thus,  where  a 
mother  interested  in  certain  lands  with  her  children,  obtained 
partition  after  being  appointed  their  guardian,  bought  in  the 
premises,  and,  without  paying  the  full  purchase-money,  gave 
a  mortgage,  taking  an  assignment  to  herself  as  guardian,  the 
claim  of  the  mortgagee  with  notice  was  postponed  to  the 
children's  share.^  So  where  a  guardian  who  held  a  mortgage 
in  his  own  right  agreed  with  the  mortgagor  to  substitute  the 
ward's  money  for  his  own,  letting  the  securities  remain  as 
before,  this  was  held  to  be  an  equitable  investment  of  the 
ward's  money,  and  good  against  any  subsequent  disposition 
which  the  guardian  might  make  while  in  failing  circum- 
stances, to  secure  his  own  creditor.^  The  guardian's  collu- 
sion with  third  parties  to  defeat  any  equity  of  the  ward  in 
land,  cannot  prevail  against  the  ward  who  seeks  in  season  to 

1  Sherman  v.  Brewer,  11  Gray,  210. 

2  Lockhart  v.  Phillips,  1  Ired.  Eq.  342 ;  Lemley  v.  Atvvood,  65  N.  C.  46. 

3  Hill  V.  Johnston,  3  Ired.  Eq.  432. 

*  Messervey  v.  Barelli,  2  Hill  Ch.  567. 

5  Evertson  v.  Evertson,  5  Paige,  644.  In  this  case,  the  creditor  had  not  even 
notice  of  the  ward's  rights.  And  see  Gannaway  v.  Tapley,  1  Cold.  572;  Robin- 
son V.  Robinson,  22  Iowa,  427. 

[  544  ] 


RIGHTS   A^'D   LIABILITIES   OF   THE   WARD.  *  508 

set  the  conveyance  aside. ^  And  in  any  strong  case  of  an  illegal 
sale  of  the  ward's  property  contrary  to  statute,  and  the  con- 
version of  the  proceeds  to  the  guardian's  own  use,  a  ward 
has  not  only  his  remedy  upon  the  guardian's  bond,  but  can 
repudiate  the  sale  and  recover  his  property.^ 

But  fraud  is  a  question  of  evidence.  And  the  payment 
of  a  debt  to  a  guardian  before  it  is  due  is  not  sufficient  in  it- 
self to  establish  an  unfair  purpose.  Hence  it  was  decided  in 
a  North  Carolina  case,  that  where  one  owing  a  bond  to  a  guar- 
dian in  failing  circumstances,  the  bond  being  in  behalf  of  the 
ward,  and  not  yet  due,  held  also  a  note  against  the  guardian 
himself,  which  he  gave  to  an  attorney  to  collect,  with  explicit 
instructions  not  to  make  an  exchange,  but  to  collect  the  note 
given  him,  and  with  the  proceeds  to  take  up  the  bond  due  the 
guardian,  and  such  attorney  received  a  bank  check  from  the 
guardian,  and  believing  the  money  to  be  in  bank,  and  that 
the  check  was  as  good  as  money,  returned  the  note  to  the 
guardian,  and  took  up  the  bond  in  his  hands,  these  acts 
having  been  performed  *  in  good  faith,  the  ward  could  *  509 
not  pursue  his  former  debtor.^ 

We  have  seen  that  the  transactions  of  a  guardian  on  behalf 
of  his  infant  ward  are  valid,  if  within  the  scope  of  his  general 
powers,  or  authorized  by  the  courts  of  equity  ;  sustainable, 
though  neither  within  the  scope  of  his  powers,  nor  previously 
authorized,  if  the  court  afterwards  deems  them  prudent  or 
beneficial  to  the  ward ;  in  other  cases,  subject  to  the  ward's 
own  disaffirmance  on  reaching  majority.  Herein  consists  the 
infant's  right  of  election.  Few  acts  of  the  guardian  can  be 
pronounced  valid,  except  in  the  sense  that  they  are  authorized, 
either  generally  or  specially,  by  the  court  which  exercises 
supervision  ;  and  few  of  his  transactions  can  be  so  utterly 
without  authority  as  to  be  absolutely  void  j[>t'r  se.  The  gen- 
eral rule  of  election  recognizes,  then,  two  principles  :  first,  the 

1  Beazley  v.  Harris,  1  Bush,  533.     See  McFarland  v.  Conlee,  44  111.  455. 

2  State  I'.  xMurray,  24  Md.  310.     See  infra,  p.  610. 

3  Wynne  v.  Benbiiry,  4  Jones  Eq.  395 ;  and  see,  as  to  fraud  generally,  Story 
Eq.  Juris.  §§  317-320  ;  Harrison  v.  Bradley,  5  Ired.  Eq.  186 ;  Dawson  v.  Massey, 
1  Ball  &  B.  329 ;  Henry  v.  Pennington,  11  B.  Monr.  55. 

35  [  545  ] 


*509  GUARDIAN  AND   WARD. 

privilege  of  the  infant  ward,  on  attaining  full  age  to  avoid  his 
guardian's  transaction ;  second,  the  right  of  courts  of  equity 
to  control  this  privilege  by  interposing  to  pronounce  the  trans- 
action good.  The  whole  doctrine,  therefore,  seems  in  strict 
accordance  with  that  more  general  rule,  that  the  accounts  of 
the  guardian  are  open  to  the  inspection  of  the  ward  at  majority, 
and  ma}^  be  disputed  down  to  the  smallest  item.  And  where, 
as  in  the  case  of  probate  guardians,  settlements  out  of  court 
do  not  dispense  with  final  returns  for  preservation  and  public 
record,  the  tendency  of  the  decisions  must  be  in  favor  of  bring- 
ing the  question  of  affirmance  or  disaffirmance  of  the 
*  510  guardian's  *  transaction  before  the  court,  instead  of 
leaving  it  to  acts  of  the  late  ward  en  pais.  These 
principles  suffice  for  general  application  to  compromises,  sub- 
missions to  arbitration,  investments  and  reinvestments  of 
personal  property,  and  similar  transactions,  undertaken  by 
the  guardian  on  the  strength  of  a  j)revious  order  of  court,  or 
at  the  risk  of  its  subsequent  approval.^  Yet,  statutes  some- 
times interpose  to  render  such  transactions  absolutely  perfect 
on  permission  of  the  court. 

But  as  to  transactions  which  involve  the  purchase  or  sale  of 
real  estate,  on  the  infant  ward's  behalf,  the  rule  is  very  strict. 
A  defective  sale  of  real  estate  under  the  statute  may  be  set 
aside  on  a  bill  in  equity  filed  by  the  infant  against  the  guar- 
dian and  the  purchasers.^  And  where  the  guardian  contracts 
to  buy  real  estate  for  the  ward's  benefit,  the  ward,  on  reach- 
ing majority,  may  either  complete  the  contract  or  reject  it, 
and  look  to  the  guardian  for  payment.^  But  he  cannot,  in 
absence  of  fraud,  compel  the  vendor  to  refund  the  money  paid 
down  as  a  bonus.'^  Nor  can  he,  having  once  renounced,  seek 
to  be  relieved  against  such  renunciation.^  The  right  of  elec- 
tion goes  to  the  ward's  personal  representatives  if  he  dies 
under  age.^   And  it  would  appear  to  be  a  general  principle 

1  Barnaby  v.  Barnaby,  1  Pick.  221.     See  supra,  chs.  6,  8. 

2  2  Kent  Com.  230 ;  Eckford  v.  De  Kay,  8  Paige,  89 ;  Westbrook  v.  Com- 
stock.  Walker  Ch.  314.  See  supra,  p.  485.  As  to  adjustment  of  rents  and 
improvements  in  such  cases,  see  Anderson  v.  Layton,  3  Bush,  87  ;  Holbrook  v. 
Brooks,  33  Conn.  347. 

3  Loyd  V.  Malone,  23  111.  43;  Hopk.  337.        *  Yerger  v.  Jones,  16  How.  30. 

*  Floyd  V.  Johnson,  2  Litt.  109.  <>  Singleton  v.  Love,  1  Head,  357. 

[546] 


RIGHTS   AND   LIABILITIES   OF   THE    WARD.  *  510 

that  where  the  ward,  after  arriving  of  age,  with  full  knowledge 
of  all  the  facts  and  in  the  absence  of  fraud,  receives  and 
retains  the  purchase-money  arising  from  the  guardian's  sale 
of  his  land,  he  cannot  question  the  validity  of  the  sale  after- 
wards.^ 

All  advantageous  bargains  which  a  guardian  makes  with 
the  ward's  funds  are  also  considered  subject  to  the  ward's 
election,  either  to  repudiate  or  to  uphold  the  contract  and 
take  the  profits.  This  applies,  in  general,  to  improper  acts  ; 
as  where  the  guardian  speculates  with  the  trust  funds,  or  in- 
vests them  in  his  own  business,  or,  in  a  word,  converts  them  to 
his  own  use.  The  ward  may  either  take  the  investment  as  he 
finds  it,  with  all  the  profits,  or  demand  the  original  fund,  with 
interest ;  though  he  cannot  avoid  a  transaction  in 
*  part  and  ratify  in  part.^  For  it  is  right  that  the  *  511 
ward  should  enjoy  all  the  advantages  which  have  ac- 
crued from  the  use  of  his  own  money  ;  and  it  is  also  right 
that  the  guardian  should  not  derive  gain  from  the  ward's  loss. 
The  old  rule  of  chancery  in  this  respect  has  been  gradually 
relaxed ;  so  that  many  acts  of  a  trustee,  which  might  once 
have  been  considered  fraudulent  and  void,  are  now  deemed 
voidable  only.-^ 

Thus  it  is  that  the  rule  may  now  be  considered  well  settled, 
that  the  guardian  who  buys  at  the  sale  of  his  ward's  lands  or 
other  property  is  secure  in  his  purchase,  and  retains  all  the 
benefits  arising  therefrom,  unless  the  ward  chooses  to  set  it 
aside  and  claims  to  be  reinstated  in  his  own  possession.  This 
rule  is  laid  down,  however,  with  great  caution  in  the  courts ; 
and  it  is  frequently  said  that  the  transaction  is  treated  all  the 
same,  whether  the  guardian  bought  the  property  outright  or 
there  was  a  colorable  purchase  by  means  of  third  parties  ; 
moreover,  that  such  sales,  in  order  to  stand  at  all,  must  have 
been  conducted  fairly  and  in  good  faith.*     Where  the  circuni- 

1  Defonl  V.  Mercer,  24  Iowa,  118. 

2  2  Kent  Com.  230 ;  Docker  v.  Somes,  2  M.  &  K.  664 ;  Kyle  v.  Barnett,  17 
Ala.  306 ;  Singleton  v.  Love,  1  Head,  357  ;  White  v.  Parker,  8  Barb.  48 ;  Jones 
V.  Beverly,  45  Ala.  161. 

3  See  Hill  on  Trustees,  159,  586. 

*  2  Kent  Com.  230 ;  Scott  v.  Freeland,  7  S.  &  M.  409  ;  Elrod  v.  Lancaster,  2 

[  '347  ] 


*511  GUARDIAN  AND  WARD.     . 

stances  show  fraud  and  collusion,  courts  of  equity  hesitate 
little  in  setting  the  transaction  aside. ^  And  a  material  ques- 
tion for  consideration  in  such  sales  is  whether  a  fair  price  was 
paid  for  the  property.  Parties  affected  with  notice  of  the 
circumstances  cannot  complain  if  their  title  to  real  estate  be- 
comes thereby  impaired  ;  but  it  is  hard  that  purchasers  with- 
out notice  should  suffer.  On  this  latter  principle,  and  for 
the  security  of  title,  rests  a  recent  decision  in  Massachusetts, 
to  the  effect  that  the  guardian's  purchase  of  his  ward's  real 
estate  is  voidable  by  the  ward  only  as  against  the  guar- 
dian, or  a  purchaser  claiming  under  him  with  knowledge  of 

the  circumstances  ;  and  not  as  against  a  subsequent 
*  512    *  grantee  or  mortgagee   without  notice.'^      Here  that 

constructive  notice  which  the  public  records  furnish  is 
probably  to  be  deemed  unavailing  on  the  ward's  behalf.^ 

This  brings  us  to  the  general  subject  of  transactions  between 
the  guardian  and  ward,  from  which  the  former  derives  a  bene- 
fit. Here,  as  in  the  guardian's  purchases,  equity  is  not  dis- 
posed to  favor  him.  "  In  this  class  of  cases,"  says  Judge 
Story,  "  there  is  often  to  be  found  some  intermixture  of  de- 
ceit, imposition,  overreaching,  unconscionable  advantage,  or 
other  mark  of  direct  and  positive  fraud."  *  Equity  will  relieve 
against  such  transactions,  on  the  general  principle  of  utility, 
although  there  may  not  have  been  actual  imposition  ;  but 
if  an  improper  advantage  has  been  taken,  the  ground  for 
relief  is  still  stronger.  And  it  is  noticeable  that  a  more  strin- 
gent rule  has  been  laid  down  as  to  guardians  than  applies  to 
transactions  between  parent  and  child  ;  for  a  guardian  is  not 
supposed  to  be  influenced  by  that  affection  for  his  ward  which 
parents  entertain  towards  their  own  offspring,  and  therefore 
has  no  such  powerful  check  upon  his  selfish  feelings.^ 

Head,  571 ;  Patton  v.  Thompson,  2  Jones  Eq.  285 ;  Chorpenning's  Appeal,  32 
Penn.  St  315.     And  see  supra,  chs.  6,  7. 

1  Hayward  v.  Ellis,  13  Pick.  272.  -  "Wyman  v.  Hooper,  2  Gray,  141. 

3  As  to  the  English  doctrine,  see  Morse  v.  Royal,  12  Ves.  372;  Gary  v.  Gary, 
2  Sch.  &  Lef.  173;  Naylor  v.  Winch,  1  Sim.  &  Stu.  567. 

*  Story  Eq.  Juris.  §  307. 

5  Pierce  v.  Waring,  cited  1  Ves.  380 ;  Hylton  v.  Hylton,  2  Ves.  547 ;  Hatch 
V.  Hatch,  9  Ves.  296.     See  Hill  on  Trustees,  157-160. 

[548] 


RIGHTS  AND   LIABILITIES   OF   THE   WARD.  *  5 1 2 

Such  questions  generally  arise  at  and  about  the  time  the 
ward  attains  majority,  and  pending  the  final  settlement  of 
the  guardian's  accounts.  The  English  rule  is  very  strict,  and 
courts  are  extremely  watchful  to  prevent  all  undue  advantage 
at  this  critical  period.  Therefore,  gifts  and  conveyances  of 
the  ward's  property,  in  consideration  of  the  guardian's  ser- 
vices, on  a  final  adjustment  may  be  set  aside  afterward  in 
equity,  even  after  the  ward's  death.  "Where  the  connection 
is  not  dissolved,  the  accounts  not  settled,  every  thing  remain- 
ing pressing  upon  the  mind  of  the  party  under  the  care  of  the 
guardian,"  observes  Lord  Eldon,  "itis  almost  impos- 
sible that  the  transaction  *  should  stand."  ^  Nor  are  *  513 
the  circumstances  under  which  the  gift  was  made  con- 
sidered of  much  account;  for  the  guardian's  superior  age  and 
knowledge  of  the  world,  and  the  fact  that  he  holds  the  prop- 
erty in  his  hands,  place  him  at  a  decided  advantage,  whether 
he  chooses  to  adopt  a  threatening  tone  or  to  impose  upon  the 
ward's  mind  by  excessive  kindness.  These  general  principles 
apply,  though  not  always  in  the  same  degree,  to  all  others 
sustaining  fiduciary  relations  ;  including  receivers  and  agents 
who  manage  the  property  of  a  cestui  que  trust.  And  unfair 
advantages  of  every  sort,  which  the  guardian  aims  to  secure 
on  a  final  adjustment  of  his  accounts, —  whether  it  be  in  the 
shape  of  compensation  or  the  waiver  of  indebtedness  incurred 
by  his  misconduct,  —  follow  one  invariable  rule  :  that  equity 
will  relieve  the  ward  against  the  consequences  of  his  one- 
sided bargain.2 

In  this  country  the  rule  is  somewhat  different ;  for  certain 
circumstances,  such  as  the  recognition  that  compensation  of 
some  sort  is  justly  due  a  trustee  for  his  services,  may  fairly 
contribute  to  relax  the  rule  in  the  guardian's  favor.  Settle- 
ments and  bargains  between  the  guardian  and  M'ard  out  of 
court  are,  however,  frequently  set  aside  for  corrupt  influence. 

1  Hatch  V.  Hatch,  9  Ves.  296. 

2  Hylton  V.  Hylton,  2  Ves.  547;  Wood  v.  Downes,  18  Ves.  120;  Mulliallenv. 
Marum,  3  Dr.  &  W.  317  ;  Aylward  i-.  Kearney,  2  Ball  &  B.  4G3  ;  Hunter  v.  At- 
kins, 3  M.  &  K.  135;  Macphers.  Inf.  260-264;  Revett  i;.  Harvey,  1  Sim.  &  Stu. 
502  ;  Duke  of  Hamilton  v.  Lord  Moliun,  1  P.  Wms.  118.  But  see  Cray  v.  .Mans, 
field,  1  Ves.  Sen.  379,  where  gift  to  an  agent  was  supported. 

[  549  ] 


*  513  GUARDIAN  AND  WARD. 

So  are  gifts  and  conveyances  in  consideration  of  the  guar- 
dian's services ;  more  especially  when  undue  influence  is 
shown  from  special  circumstances.^  A  guardian  cannot  recall 
his  own  gift  to  his  ward ;  though  such  a  gift  might  lead  the 
court  to  regard  the  guardian's  account  for  expenditure  with 
favor  towards  him.^  In  Pennsylvania,  it  is  said  that  settle- 
ments will  not  stand  unless  full  deliberation  and  good  faith 
are  manifest ;  but  that  a  settlement  made  in  good  faith, 
especially  if  wise  and  prudent,  cannot  be  impeached, 

*  514    after  the  ward's  death,  by  his  representatives.^    *This 

is  doubtless  the  rule  elsewhere.  And  the  mere  fact 
that  a  settlement  has  been  made  between  guardian  and  ward, 
with  allowances  in  the  guardian's  favor,  is  not  conclusive  of 
fraud,  though  every  intendment  is  still  to  be  construed  on  the 
ward's  behalf.^  Circumstances,  such  as  great  inadequacy  of 
price  in  a  guardian's  purchase  of  his  ward's  property  shortly 
after  the  latter  reaches  majority,  would  doubtless  suffice,  if 
not  rebutted  by  ample  proof  of  fairness,  for  setting  aside  the 
transaction  as  fraudulent.^ 

The  fact  that  settlements  out  of  court  are  not  generally  re- 
garded in  this  country  as  conclusive,  inasmuch  as  the  probate 
guardian  must  still  file  his  accounts  and  submit  his  transac- 
tions  to  the  court,  is  a  great  safeguard  against  fraud.  A  fixed 
rule  is  established  for  the  final  adjustment  of  all  matters  in 
controversy  between  guardian  and  ward.  The  chancery 
practice  is  to  allow  the  Avard  a  reasonable  time,  after  attain- 
ing majority,  usually  one  year,  to  reopen  all  accounts  between 
himself  and  his  guardian.^  Hence  a  receipt  in  full,  or  a  for- 
mal release,  has  been  set  aside  as  inconclusive.  And  where 
the  ward  has  made  a  partial  inspection  only,  without  exam- 

1  Hall  V.  Cone,  5  Day,  543;  Waller  v.  Armistead,  2  Leigh,  11  ;  Siillivan  v. 
Blackwell,  28  Miss.  737  ;  Clowes  v.  Van  Antwerp,  4  Barb.  416  ;  Briers  v.  Hack- 
ney, 6  Geo.  419  ;  Fridge  v.  State,  3  Gill  &  Johns.  103 ;  Richardson  i'.  Linney,  7 
B.  Monr.  571. 

-'  Bond  V.  Lockwood,  33  111.  212  ;  Pratt  v.  McJunkin,  4  Rich.  5. 

3  Hawkins'  Appeal,  32  Penn.  St.  263. 

4  Kirby  v.  Taylor,  6  Johns.  Ch.  242 ;  McClellan  v.  Kennedy,  8  Md.  230  ; 
Spalding  v.  Brent,  3  Md.  Ch.  411 ;  Meek  v.  Perry,  36  Miss.  190 ;  Myer  i-.  Rives, 
11  Ala.  760. 

5  Eberts  V.  Eberts,  55  Penn.  St.  110;  Snell  v.  Elam,  2  Heisk.  82. 
<>  Matter  of  Van  Home,  7  Paige,  46. 

[  550  ] 


RIGHTS   AND  LIABILITIES   OF   THE   WARD.        *  514 

ining  the  vouchers,  or  acted  without  advice,  or  upon  imperfect 
knowledge  of  the  facts,  so  much  the  greater  is  his  equity  to 
relief.^  But  in  probate  guardianship,  settlements  out  of  court 
usually  give  way  to  settlements  in  court.  And  if  the  ward 
makes  no  objection  to  the  guardian's  final  account  as  pre- 
sented, and  it  is  thereupon  approved  and  recorded,  and  appeal 
is  not  taken,  no  necessity  for  application  of  the  chancery  rule, 
of  reopening  the  account,  seems  to  exist,  except  upon  very 
strong  proof  of  fraud  or  error.^ 

*  Transactions  after  the  period  of  guardianship,  be-  *  515 
tween  parties  lately  holding  the  relation  of  guardian 

1  Revett  V.  Harvey,  1  Sim.  &  Stu.  502 ;  Wych  v.  Packington,  3  Bro.  P.  C.  46  ; 
Rapalje  v.  Norsworthy,  1  Sandf.  Ch.  399;  Johnson  v.  Johnson,  2  Hill  Ch.  277; 
Womack  v.  Austin,  1  S.  C.  n.  s.  421. 

2  Kittredge  v.  Betton,  14  N.  H.  401 ;  Musser  v.  Oliver,  21  Penn.  St.  362 ; 
Pierce  v.  Irish,  31  Me.  254 ;  Boynton  v.  Dyer,  18  Pick.  1 ;  Hickman's  Appeal, 
7  Barr,  464  ;  Southall  p.  Clark,  3  Stew.  &  Port.  338  ;  McDow  v.  Brown,  2  S.  C. 
N.  s.  95  ;  Bybee  v.  Tharp,  4  B.  Monr.  313.  Among  decisions  which  apply  to 
transactions  between  guardian  and  ward  the  following  may  be  noticed.  Where  a 
guardian  advances  money  on  his  ward's  account,  he  may  have  an  assignment 
of  the  security.  Kelchner  v.  Forney,  29  Penn.  St.  47.  He  is  not  necessarily 
bound  to  pay  over  cash  on  settlement ;  but  securities  taken  in  the  performance 
of  his  official  duty  are  transferable  at  a  just  valuation,  tiie  same  as  any  specific 
chattels,  and  the  ward  must  take  them  in  this  form.  Goodson  v.  Goodson, 
6  Ired.  Eq.  238.  In  extending  time  for  payment  of  a  security  the  guardian  may 
sometimes  arrange  fairly  with  his  ward  for  special  compensation.  Burnham  v. 
DaUing,  3  C.  E.  Green,  132.  The  guardian  who  does  not  insist  on  surrendering 
good  securities,  properly  taken,  as  the  estate  of  his  ward,  but  pays  out  of  his 
own  funds  instead,  in  part,  may  become  to  a  corresponding  extent  joint  owner 
of  the  securities.  Higgins  v.  McClure,  7  Bush,  379.  But  the  guardian's  own 
note  or  bond  for  the  balance  of  money  adjudged  due  on  a  final  settlement  is  no 
payment  to  the  ward,  nor  does  it  discharge  the  guardian's  sureties.  It  is  a  mere 
postponement  of  final  payment,  and  affords  evidence  of  an  admitted  liability  on 
his  part.  Wardlaw  v.  Gray,  2  Hill  Ch.  644;  Hamlin  v.  Atkinson,  6  Rand.  574. 
The  guardian  cannot  buy  up  an  equitable  encumbrance,  and  enforce  it  against 
the  ward  who  is  ready  to  refund.  Taylor  v.  Taylor,  G  B.  Monr.  559.  The  ward 
may  release  to  one  of  joint  guardians  and  not  to  the  others,  and  thus  hold  the 
sureties.  Kirby  v.  Taylor,  6  Johns.  Ch.  242 ;  though  this  principle  may  be 
affected  by  general  rules  as  to  probate  bonds.  A  receipt  in  full  discharges  only 
for  the  amount  actually  received  by  the  wards,  and  binds  only  such  wards  as 
were  authorized  to  give  it;  and  its  validitj-  and  effect,  though  under  seal,  may 
be  considered  in  court.  Witman's  Appeal,  28  Penn.  St.  376  ;  Barnes  i:  Comp. 
ton,  8  Gill,  391  ;  Felton  r.  Long,  8  Ired.  Eq.  224  ;  Magruder  i'.  Goodwyn,  2  P.  & 
H.  561  ;  Stark  v.  Gamble,  45  N.  H.  465  ;  Wade  v.  Lol)dell,  4  Cush.  510.  The 
settlement  of  an  insolvent  guardian  with  his  ward  is  sometimes  protected  by  a 
court  of  equity  as  against  the  guardian's  assignee  in  insolvency.  Moore  v. 
Hazelton,  9  Allen,  102. 

[551] 


*515  GUARDIAN  AND  WARD. 

and  ward,  especially  if  the  ward  still  remains  under  the  in- 
fluence of  a  former  guardian,  maybe  set  aside  upon  the  same 
principle  of  constructive  fraud.  It  is  true  that  bargains 
between  them  are  good  whenever  the  influence  is  fully  re- 
moved ;  even  to  gifts  and  conveyances  in  consideration  of 
past  services,  the  accounts  having  been  finally  closed,  the 
property  duly  transferred,  and  the  late  parties  to  the  fiduciary 
relation  standiuR'  toward  one  another  as  man  and  man.  Under 
these  circumstances,  the  late  guardian  may  purchase  property 
of  his  late  ward.^  But  such  transactions  are  always  to  be 
regarded  with  suspicion.  And  where  the  influence  still  con- 
tinues, as  if  the  ward  be  a  female,  or  a  person  of  weak 
understanding,  and  the  guardian  continues  to  control  the 
property  or  to  furnish  a  home,  the  court  is  strongly  disposed 
to  set  aside  the  bargain  altogether.^  Thus  where  a  guardian 
procures  the  late  ward's  indorsement  of  his  own  notes  with- 
out  consideration,  the   parties    who   take   such   notes   with 

knowledge  of  the  fiduciary  relationship,  have  been 
*  516    enjoined  *  from  enforcing  them  against  the  indorser.^ 

And  if  the  guardian  purchase  rights  of  the  late  ward 
in  his  father's  property  for  a  grossly  inadequate  consideration, 
it  will  be  set  aside.*  The  circumstance  that  the  guardian  had 
better  opportunities  of  acquaintance  with  the  actual  condition 
and  value  of  the  property  than  the  ward  himself  is  properly 
to  be  considered  on  the  latter's  behalf.  Purchases  of  the 
guardian's  property  by  the  late  ward  are  to  be  closely  scru- 
tinized in  like  manner.^ 

This  principle  applies  to  quasi  guardians,  even  to  parents. 
Not  many  years  since,  a  young  lady,  who  had  been  living  for 
thirteen  years  with  her  mother  and  step-father,  joined  the 
latter  within  twelve  months  after  she  became  of  age,  at  his 
request  and  under  his  influence,  in  a  promissory  note  for 
which  she  received  no  consideration.     The  payee  some  years 

1  Oldin  V.  Samborn,  2  Atk.  15. 

2  See  Macphers.  Inf.  2G0;  Huguenin  v.  Baseley,  14  Ves.  273;  Dent  v. 
Bennett,  4  M.  &  C.  269  ;  Mellish  v.  Mellish,  1  Sim.  &  Stu.  138;  Dawson  v.  Mas- 
sey,  1  Ball  &  B.  219 ;  Garvin  v.  Williams,  50  Mis.  206. 

3  Gale  V.  Wells,  12  Barb.  84. 

*  Wright  V.  Arnold,  14  B.  Monr.  638 ;  Williams  v.  Powell,  1  Ired.  Eq.  460. 
5  Sherry  v.  Sansberry,  3  Ind.  320. 

[552] 


RIGHTS   AND   LIABILITIES   OF   THE   WARD.         *  5  1 6 

later  obtained  judgment  at  common  law,  and  was  about  to 
take  out  execution,  when  the  Court  of  Chancery  interfered  on 
motion,  restrained  the  payee  from  enforcing  his  execution, 
and  ordered  the  money  paid  into  court.^ 

But  the  ward  may  be  barred  by  the  lapse  of  time  or  by 
his  own  acts  from  disaffirming  his  own  transactions  or  his 
guardian's  unauthorized  acts.  Such  lapse  of  time  is  to  be 
computed  from  the  time  he  becomes  competent  to  act.  And, 
to  be  barred  by  his  own  acts,  it  should  appear  that  he  acted 
after  termination  of  his  disability,  with  deliberation  and  on 
full  knowledge  of  the  essential  facts.^  Thus,  where  a  guar- 
dian has  exceeded  his  ward's  income  in  purchasing  for  him  a 
horse  and  buggy,  there  will  be  a  ratification  presumed  from 
circumstances  showing  that  the  ward  used  them  after  majority 
and  received  the  proceeds  of  their  sale.^  And  the  composi- 
tion of  a  debt  on  fair  terms  made  between  an  insolvent  guar- 
dian and  his  ward  about  eight  years  after  the  latter  became 
of  age,  will  not  readily  be  set  aside  for  the  purpose  of  ena- 
bling the  ward  at  so  late  a  day  to  reach  the  sureties  on  the 
guardian's  bond.* 

It  is  a  rule  of  tlie  English  courts  of  chancery  that  no  one 
can  marry  a  ward  of  the  court  without  its  express 
sanction.  And  *  wherever  a  guardian  is  appointed  he  *  517 
must  give  a  recognizance  that  the  infant  shall  not 
marry  without  its  leave. ^  If  a  man  marry  a  female  ward 
without  the  approbation  of  the  court,  he,  and  all  others  con- 
cerned, will  be  treated  as  guilty  of  a  contempt  of  court,  and 
punished  accordingly.  So  where  there  is  reason  to  suspect 
an  improper  marriage  of  its  wards,  the  court  will  interfere, 

1  Espey  V.  Luke,  15  E.  L.  &  Eq.  579.  And  see  Maitland  v.  Backhouse,  16 
Sim.  58. 

2  Fish  V.  Miller,  1  Hoff.  Ch.  2G7  ;  Binion  v.  Miller,  27  Geo.  78 ;  Scott  v.  Free- 
land,  7  S.  &  M.  409;  Hume  v.  Hume,  3  Barr,  144;  Worrell's  Appeal,  23  Benn. 
St.  44  ;  Sherry  v.  Sansberry,  3  Ind.  320;  Penn  i'.  Heisey,  19  111.  295;  Singleton 
V.  Love,  1  Head,  357  ;  Maephers.  Inf.  538-543  ;  Lee  v.  Brown,  4  Ves.  361 ;  Cory 
V.  Gertcken,  2  Madd.  40 ;  AUfrey  v.  Allfrey,  11  Jur.  981. 

3  Caffey  v.  McMichael,  64  N.  C.  507.  *  Motley  v.  Motley,  45  Ala.  555. 

5  Story  Eq.  Juris.  §§  1358-1361 ;  Maephers.  Inf.  191-209;  Eyre  v.  Countess  of 
Shaftesbury,  2  P.  Wms.  Ill  ;  Smith  v.  Smith,  3  Atk.  305;  Stackpole  v.  Beau- 
mont, 8  Ves  98 ;  Stevens  v.  Savage,  1  Ves.  Jr.  154. 

[  553] 


*517  GUARDIAN   AND   WARD. 

by  injunction,  to  prevent  the  marriage,  to  forbid  all  inter- 
course between  the  lovers,  and  even  to  take  the  ward  from 
the  custody  of  the  guardian  or  any  other  person  who  is 
supposed  guilty  of  connivance  with  the  match.  When  an 
offer  of  marriage  is  made,  the  court  refers  it  to  a  master  to 
ascertain  and  report  whether  the  match  is  suitable,  and  also 
what  settlement  should  be  made  upon  the  ward.  Where  a 
marriage  has  been  celebrated  without  leave,  the  court  will 
interfere  to  protect  the  female  ward  against  the  consequences 
of  her  indiscretion,  and  will  compel  the  husband  to  make  a 
suitable  settlement  upon  her.^  This  whole  subject  is  peculiar 
to  the  laws  of  England,  and  has  no  application  whatever  to 
courts  of  chancery  in  this  country ;  unless  it  be  that  orders 
might  issue  in  some  cases  of  improvident  marriage  to  compel 
the  settlement  of  a  suitable  portion  upon  the  female  ward. 
Yet  authority  is  wanting  for  the  exercise  of  chancery  juris- 
diction even  to  this  extent :  so  repugnant  does  it  appear  to 
the  whole  tenor  of  our  legislation.  But  where  property  of  a 
female  ward  is  under  the  control  of  a  court  of  equity,  and  the 
husband  needs  its  assistance,  a  suitable  provision  might  be 
compelled  on  her  behalf  ;  for  this  would  be  in  accordance  with 
the  general  law  of  husband  and  wife.^ 

1  Kenny  v.  Udall,  5  Johns.  Ch.  464,  473 ;  s.  c.  3  Cow.  591 ;  Van  Epps  v.  Van 
Deusen,  4  Paige,  64  ;  Van  Duzer  v.  Van  Duzer,  6  Paige,  366.  See  also  Red- 
field's  n.  to  Story  Eq.  Juris.  §  1361 ;  Chambers  v.  Perry,  17  Ala.  726. 


[554] 


THE    GENERAL   DISABILITIES   OF  INFANTS.         *518 


*PAET    V.  *518 

INFANCY. 


CHAPTER   I. 

THE   GENERAL   DISABILITIES   OF  INFANTS. 

All  persons  are  infants,  in  legal  contemplation,  until  they 
have  arrived  at  majority.  The  period  of  majority  differs  in 
different  States  and  countries ;  but  this  general  principle 
remains  the  same. 

By  the  civil  law,  full  majority  was  not  attained  until  the 
person  had  completed  his  twenty-fourth  year ;  he  was  then 
said  to  be  loerfectce  cetatis  —  cetatis  legitimce}  This  period 
was  likewise  adopted  in  France  (though  it  was  afterwards 
changed),  and  it  prevails  still  in  Spain,  Holland,  and  some 
parts  of  Germany.2  By  the  French  civil  code,  the  age  of  full 
capacity  is  twenty-one  years,  except  that  twenty-five  years  is 
the  majority  for  contracting  marriage  without  paternal  con- 
sent, by  the  male,  and  twenty-one  by  the  female.^  The  law 
of  Scotland  adopts  the  age  of  twenty-one.*  Among  the 
Greeks  and  earl}-  Romans,  women  were  never  of  age,  but 
subject  to  perpetual  guardianship,  except  as  wives;  this 
gradually  changed,  and  the  civil  law,  as  it  stood  in  the  time 
of  Justinian,  permitted  females  as  well  as  males  to  attain 
their  majority  at  twenty-five.^ 

*  The  common  law  of  England,  from  the  remotest  *  519 
times,  has  fixed  twenty-one  as  the  period  of  absolute 

•  1  Burge  Col.  &  For.  Laws,  113.  2  lb.  114. 
3  Code  Civil,  §§  145,  488;  2  Kent  Com.  233. 

*  Ersk.  Inst.  b.  1,  tit.  vii. ;  1  Bl.  Com.  464. 
5  Inst.  1,  23,  1 ;  1  Bl  Com.  464. 

[555  ] 


*  5  1 9  INFANCY. 

majority  for  both  sexes  ;  or,  to  be  more  exact,  an  infant  at- 
tains full  age  on  the  beginning  of  the  day  next  preceding  the 
twenty-first  anniversary  of  his  birth. ^  The  same  rule  is  ap- 
plied in  most  parts  of  the  United  States,  though,  in  some  of 
the  States,  females  have  an  enlarged  capacity  to  act  at  eigh- 
teen.2  Under  the  statutes  of  Vermont,  Ohio,  and  Illinois, 
and  some  other  Western  States,  females  are  deemed  of  age  at 
eighteen.^  The  code  of  Louisiana  follows  common-law,  not 
civil-law,  principles,  and  adopts  twenty-one  as  the  limitation 
for  both  sexes.*  Thus  arbitrary  is  the  law  Avhich  fixes  the 
period  of  majority ;  nature  assigning  no  precise  and  uniform 
period  at  which  the  disability  of  infancy  shall  cease,  yet 
clearly  indicating  that  there  must  be  some  such  period. 

A  man  born  the  first  day  of  February,  1600,  after  eleven 
o'clock  at  night,  was  adjudged  in  England  to  be  of  full  age 
after  one  o'clock  on  the  morning  of  the  last  day  of  January, 
1621.^  This  is  because  the  common  law  makes  no  allowance 
for  fractions  of  a  day.  But  the  civil  law,  in  order  to  secure 
to  the  person  the  full  protection  afforded  on  account  of  his 
minority,  did  not  hold  the  commencement  of  the  day  to  be  its 
completion,  if  injurious  to  his  interests.^  In  some  instances,. 
the  civil  law  permitted  the  State  or  sovereign  to  grant  veriia 
cetatis  to  full-grown  persons  who  stood  in  need  of  it,  and  thus 
to  place  them  constructively  on  the  footing  of  infants ;  but 
nothing'  of  the  sort  is  recognized  at  common  law.' 

*  520        *  The  principle  of  an  enlarging  capacity  in  infants 

has  been  incidentally  noticed.  It  is  reasonable  to 
suppose  that  they  who  are  constantly  growing,  become  natu- 
rally competent  for  certain  purposes  long  before  they  attain 
complete  majority,  and  young  men  and  women  may  well  be 

1  2  Kent  Com.  233;  1  Bl.  Com.  463;  1  Salk.  44;  Ld.  Rayra.  480,  1096;  3 
Wils.  274 ;  Hamlin  v.  Stevenson,  4  Dana,  597 ;  State  v.  Clarke,  3  Harrlng.  557  ; 
Wells  V.  Wells,  6  Ind.  447. 

^  2  Kent  Com.  283.     See  Crapster  v.  Griffith,  2  Bland  Cli.  5. 

3  Sparhawk  1-.  Buel,  9  Vt.  41 ;  Stephenson  v.  Westfall,  18  111.  209. 

4  Louisiana  Code,  arts.  41,  93.  This  was  the  long-settled  rule  likewise  in 
Texas.     Means  v.  Robinson,  7  Tex.  502. 

5  Fitzhue  v.  Bennington,  6  Mod.  259 ;  1  Salk.  44,  and  citations  in  last  section. 
And  see  1  Jarm.  Wills,  Eng.  ed.  18G1,  39  ;  Met.  Contr.  38.  Judge  Redfield  dis- 
sents from  this  rule.     See  1  Redf.  Wills,  18-20. 

6  J.  Voet,  lib.  4,  tit.  4,  n.  1.  ''  See  1  Burge  Col.  &  For.  Laws,  116,  117. 

[556] 


THE   GENERAL   DISABILITIES   OF  INFANTS.  *  5'20 

allowed  the  exercise  of  more  discretion  than  babes.  Hence, 
we  find  that  infants  of  suitable  age  are  allowed  to  contract  a 
valid  marriage  ;  that  males  of  the  age  of  fourteen  and  up- 
wards, and  females  at  the  age  of  twelve,  could  once  dispose 
of  personal  estate  by  will,  and  at  fourteen  may  still  choose  or 
nominate  their  own  guardians  ;  that  children  of  discretion 
have  a  voice  in  determining  the  right  of  custody  and  control. 
But  not  until  attaining  majority  could  a  person  at  the  com- 
mon law  convey,  lease,  or  make  contracts  in  general  which 
would  bind  him  ;  and  the  foregoing  must  then  be  considered 
as  among  the  exceptions  to  the  rule  that  persons  are  legally 
incapable  so  long  as  they  are  minors.^ 

Legislative  emancipation  has  existed  in  Louisiana.  In  the 
case  of  an  emancipated  minor  under  such  statutes,  by  which 
he  is  relieved  from  the  time  prescribed  by  law  for  attaining 
the  age  of  majority,  he  is  invested  with  all  the  capacities  in 
relation  to  his  property  and  obligations,  which  he  would  have, 
had  he  actually  arrived  at  the  age  of  twenty-one  years.  And 
he  may  be  appointed  administrator  of  an  estate.^  But  the 
right  of  legislative  emancipation  seems  never  to  have  been 
distinctly  admitted  at  the  common  law  in  any  such  sense. 

Supposing  a  conflict  of  laws  should  arise  over  the  contract 
of  an  infant  by  reason  of  the  period  of  majority  being  differ- 
ently assigned  by  the  law  of  the  domicile  of  his  origin  and 
that  of  his  actual  domicile,  or  of  the  situation  of  real  property, 
or  of  the  place  where  he  has  entered  into  a  contract.  The 
rules  for  such  cases  are  these  :  First,  that  the  actual  domicile 
will  be  preferred  to  the  domicile  of  birth.  Secondly^ 
that  the  law  of  situation  of  real  *  property  must  pre-  *  521 
vail  over  that  of  domicile.  Tliirdly,  that  the  law  of 
the  place  where  a  contract  is  made  must  prevail  over  that  of 
domicile.^ 

The  right  of  action  for  the  recovery  of  real  estate  belonging 

1  Co.  Litt.  78  6,  89  h,  and  Harg.  note.  As  to  the  privilege  of  wills,  see  stat. 
1  Vict.  c.  26,  §  7  ;  infra,  p.  524. 

2  Succession  of  Lyne,  12  La.  Ann.  155.  As  to  emancipation  of  a  minor  in  our 
usual  sense,  see  su/ira,  p.  367. 

3  Male  V.  Roberts,  3  Esp.  163  ;  1  Burge  Col.  &  For.  Laws,  118  et  seq. ;  Story 
Confl.  Laws,  §§  75,  82,  332;  Thompson  v.  Ketcham,  8  Johns.  189;  Hierstand  v. 

[557  ] 


*  521  INFANCY. 

to  an  infant  will  be  governed,  not  by  the  law  in  force  when 
the  right  of  action  accrued,  but  by  the  law  in  force  when  the 
infant  became  of  age.^ 

Next,  as  to  the  infant's  right  of  holding  office.  There  are 
numerous  old  cases  to  be  found  in  tlie  books  where  an  infant 
has  been  adjudged  capable  of  holding  offices  that  involve  no 
pecuniary  or  public  trust,  and  require  only  moderate  skill  and 
diligence ;  such  as  the  office  of  jDark-keeper,  forester,  sheriff, 
and  jailer ;  though  on  the  ground  apparently  that  such  offices 
formerly  were  capable  of  grant,  and  the  grantees  had  the 
power  to  act  by  deputy. ^  But  the  modern  doctrine  seems  to 
be  clear  that  no  office  of  pecmiiary  and  public  responsibility 
can  be  conferred  upon  an  infant ;  not  so  much  because  of 
mental  incapacity  on  his  part,  as  for  the  very  good  reason 
that  a  person  who  is  not  legally  responsible  for  the  duties  of 
his  office  cannot  be,  in  point  of  law,  a  proper  person  to  exe- 
cute them.  A  public  office  which  requires  the  personal  re- 
ceipt and  disbursement  of  money  is  not  then  to  be  filled  Ijy  an 
infant.^  Nor  can  an  infant  act  as  administrator,  executor,  or 
trustee  ;  nor  by  his  concurrence  (in  the  absence  of  fraud  on 
his  part)  sanction  a  breach  of  trust.'*  He  cannot  be  a  guar- 
dian, an  attorney  under  a  power  (except  to  receive  seisin),  a 
bailiff,  a  factor,  or  a  receiver.^ 

The  service  of  a  notice  of  replevy  by  an  infant  is,  in  Eng- 
land, illegal  and  void ;  and  it  would  appear  that  he  cannot  be 
sheriff's  officer.^  But  in  New  Hampshire,  it  is  held  that  an 
infant  may  be  deputed  to  serve  and  return  a  particular 

*  522    writ ;  on  the  ground  *  that  while  offices  where  judg- 

Kuns,  8  Blackf.  345 ;  Saul  v.  ffis  Creditors,  17  Martin,  597  ;  2  Kent  Com.  233,  n. ; 
Huey's  Appeal,  1  Grant  (Penn.),  51;  Wharton  Confl.  §  112. 

1  Gilker  v.  Brown,  47  Mis.  105. 

■-  Bac.  Abr.  Infancy  and  Age  (E)  ;  3  Mod.  222;  Young  v.  Fowler,  Cro.  Car. 
555  ;  Macphers.  Inf.  448. 

*  Claridge  v.  Evelyn,  5  B.  &  Aid.  81.  See  Crosbie  v.  Hurley,  1  Alcock  & 
Napier,  431. 

*  Macphers.  Inf.  449  ;  Wilkinson  v.  Parry,  4  Russ.  272.  But  though  wrongly 
appointed,  he  will  be  liable  to  account  for  money  received  by  him  after  reacliing 
majority.     Carow  v.  Mowatt,  2  Edw.  Ch.  57. 

5  Macphers.  Inf.  448,  449 ;  Co.  Litt.  3  b,  172. 
•5  Cuckson  V.  Winter,  2  M.  &  Ry.  306. 
[  558] 


THE   GENERAL   DISABILITIES  OF  INFANTS.  *  522 

ment,  discretion,  and  experience  are  essentially  necessary 
to  the  ]i roper  discharge  of  the  duties  the}-  impose,  are  not 
to  be  intrusted  to  infants,  offices  may  be  held  which  are 
merely  ministerial,  and  require  nothing  more  than  skill  and 
diligence.^  But  a  distinction  is  properly  taken  between  the 
case  of  officers  of  justice  ordinarily  liable  for  false  return, 
misfeasance,  and  the  like,  and  those  who  have  no  such  lia- 
bilit}' ;  and  for  this  reason,  while  in  Vermont,  an  infant  may 
serve  a  particular  writ,  he  cannot  be  specially  authorized  to 
serve  mesne  process  by  the  magistrate.^ 

In  ancient  times  minors  appear  to  have  frequently  sat  in 
the  British  parliament.  Thus  it  is  related  that  a  son  of  the 
Duke  of  Albemarle  took  part  in  debate  when  only  of  the  age 
of  fourteen  ;  and  history  states  that  about  the  10th  James  I. 
there  were  fort}*  members  not  above  twenty  3-ears  of  age,  and 
some  not  above  sixteen.^  But  by  statute  it  is  now  provided 
that  an  infant  cannot  sit  in  the  House  of  Lords,  or  vote  at  an 
election  for  a  member  of  the  lower  house,  or  be  elected.* 

There  are  provisions  in  the  Constitution  of  the  United 
States  and  of  the  different  States,  adopted  undoubtedly  be- 
cause it  was  considered  contrary  to  sound  public  policy  to 
commit  any  offices  requiring  considerable  skill  and  prudence, 
not  to  say  pecuniary  and  public  responsibility,  to  the  young 
and  immature.  By  the  Constitution  of  the  United  States,  no 
person  can  be  President  who  has  not  attained  the  age  of 
thirty-five  years  ;  nor  a  senator,  who  is  under  the  age  of 
thirty  years ;  nor  a  representative  in  congress  who  is  not 
twenty-five  years  of  age.  Corresponding  laws  abound  in  the 
different  States  as  to  the  eligibility  of  local  officers.  So  is 
the  disqualification  to  vote  universally  applied  by  our  laws  to 
minors,  and  restrictions  upon  the  right  of  suffrage  may  extend 
even  further.^ 

*  The  true  principle  to  be  extracted  from  the  au-  *  523 
thorities  seems  therefore   to   be   that  the   court  will 

1  Moore  v.  Graves,  3  N.  H.  408.     But  see  Tyler  v.  Tyler,  2  Root,  519. 

2  Barrett  v.  Seward,  22  Vt.  176 ;  Harvey  v.  Hall,  ib.  211. 

3  See  Macphers.  Inf.  449,  n. ;  1  Pari.  Deb.  420,  notes. 
M  &  8  Will.  3,  c.  25. 

8  The  officer  wiio  usually  administers  the  oath  of  office  cannot  refuse  to  do  so 
on  such  grounds.     People  v.  Dean,  3  Wend.  438. 

[559] 


*  523  INFANCY. 

inquire  whether  an  infant,  as  such,  is  by  law  capable  of  dis- 
charging suitably,  faithfully,  and  efficiently  the  duties  of  a 
particular  office,  and  so  as  to  leave  open  all  the  usual  reme- 
dies to  others  ;  and  this  is  a  proper  rule  of  guidance,  the 
statutes  being  silent,  rather  than  ancient  precedents  laid 
down  as  to  particular  offices  in  times  when  they  were  trans- 
missible in  families  and  mere  sinecures.^ 

There  are,  undoubtedly,  certain  offices  which  an  infant  may 
properly  hold.  And  the  legislature  is  competent  to  establish 
an  earlier  or  later  j)eriod  at  which  persons  shall  be  deemed  of 
full  age  for  certain  purposes.  Hence  in  Massachusetts,  under 
a  law  fixing  eighteen  years  as  the  age  for  military  duty,  and 
empowering  an  infant  at  that  age  to  enlist  of  his  own  accord, 
and  without  the  parent's  assent,  in  the  militia,  it  is  held  that 
he  may  be  elected  company  clerk,  or  even,  as  it  would  appear, 
a  commissioned  officer  of  the  company .^ 

Infants  who  have  arrived  at  sufficient  maturity  in  years  and 
understanding  are  capable  of  committing  crimes ;  and  it  is 
said  that  they  cannot  plead  in  justification  the  restraint  of  a 
parent,  as  married  women  can  that  of  the  husband;  although, 
as  we  presume,  duress  or  compulsion  might  properly  be  set 
up  in  defence,  wherever  a  j^oung  child  is  indicted  and  tried 
for  a  crime.  The  period  of  life  at  which  a  capacity  of  crime 
exists  is  determined  by  law  to  a  certain  extent ;  for  a  child 
under  seven  is  conclusively  incapable  of  crime,  one  between 
seven  and  fourteen  only  prima  facie  so,  and  one  over  fourteen 
prima  facie  capable  like  any  other.^  An  exception  to  this 
rule  is  usually  stated  in  certain  cases'  of  physical  impotence  ; 
for  it  is  argued  that  a  boy  under  fourteen  years  of  age 
*  524    is  physically  undeveloped,  and  therefore  *  cannot  be 

1  For  some  of  the  old  decisions  as  to  wliat  offices  an  infant  might  or  might 
not  hold,  see  Bac.  Abr.  Infancy  and  Age  (E)  ;  also  Moore  v.  Graves,  3  N.  H.  408, 
passim. 

^  Dewey,  Petitioner,  11  Pick.  265.     See  Hands  v.  Slaney,  8  T.  R.  578. 

3  1  Bish.  Crim.  Law,  §  460 ;  1  Russ.  Crimes,  Grea.  ed.  2 ;  Marsh  v.  Loader, 
14  C.  B.  N.  s.  585.  The  text-writers  have  said  that  an  infant  can  never  plead 
constraint  of  the  parent,  but  this  may  be  doubted.  See  Humphrey  v.  Douglass, 
10  Vt.  71 ;  Commonwealth  v.  Mead,  10  Allen,  398;  State  v.  Learnard,  41  Vt. 
585. 

[560] 


THE  GENERAL  DISABILITIES  OF  INFANTS.  *  524 

legally  guilty  of  rape  or  similar  crimes.^  Incapacity  for 
committing  a  crime  might  properly  be  considered  in  con- 
nection with  incapacity  of  criminal  intent ;  and  yet  the  later 
rule  of  Ohio  and  some  other  States  seems  the  more  correct 
one,  which  is  to  reject  in  such  case  any  doctrine  of  conclusive 
j)resumption  of  incapacity,  and  allow  evidence  of  criminal 
intent  to  be  furnished.^  But  investigations  on  this  point 
might  be  held  contra  bonos  mores.  The  general  rule  is  that 
capacity  for  crimes  in  persons  above  the  age  of  seven  years  is 
a  question  of  fact ;  the  law  assuming  prima  facie  incapacity 
under  fourteen,  and  capacity  over  fourteen ;  but  subjecting 
that  assumption  to  the  effect  of  proof  as  to  the  real  fact.^ 

Where  a  statute  creates  an  offence,  infants  under  the  age  of 
legal  capacity  are  not  presumed  to  have  been  included  ;  yet 
where  an  act  is  denounced  as  a  crime,  even  felony  or  treason, 
it  extends  as  well  to  infants  if  above  fourteen  years,  as  to 
others.* 

An  infant  may  be  indicted  for  obtaining  goods  by  false 
pretences.^  He  is  liable  to  bastardy  process.^  And,  follow- 
ing the  general  principle  already  announced,  children  less 
than -fourteen  have  been  convicted  for  arson  and  murder,  the 
prw? a /aci'g  presumption  of  incapacity  being  overcome.^  But 
a  child  less  than  seven  cannot  be  indicted  for  nuisance,  though 
owner  of  the  land.^  And  it  is  reasonable  to  add  that  the  evi- 
dence of  malice  which  is  to  supply  age  ought  to  be  strong  and 
clear,  beyond  all  doubt  and  contradiction.^ 

An  infant,  it  is  held  in  Tennessee,  may  make  a  criminal 
complaint,  and  be  what  is  known  as  the  prosecutor.^*^ 

1  1  Bish.  Crim.  Law,  §§  466,  672,  and  cases  cited  ;  State  v.  Handy,  4  Harring. 
566  ;  Eeg.  v.  Phillips,  8  Car.  &  P.  736.  ' 

2  Williams  v.  State,  14  Ohio,  222 ;  People  v.  Randolph,  2  Parker,  174  ;  Com- 
monwealth V.  Green,  2  Pick.  380. 

=*  State  V.  Learnard,  41  Vt.  585. 

*  1  Hawk.  1 ;  4  Bl.  Com.  23 ;  1  Bish.  Crim.  Law,  §  462. 

*  People  V.  Kendall,  25  Wend.  399. 

6  Chandler  v.  Commonwealth,  4  Met.  (Ky.)  66. 

■J  See  4  Bl.  Com.  23,  24;  1  Bish.  Crim.  Law,  §  464,  and  cases  cited. 

8  People  V.  Townsend,  3  Hill,  479. 

9  See  4  Bl.  Com.  24  ;  Commonwealth  v.  Mead,  10  Allen,  398  ;  Stephenson  v. 
State,  28  Ind.  272. 

i"  State  V.  Dillon,  1  Head,  389. 

36  [  561  ] 


*  524  INPANCY. 

The  age  at  which  persons  may  dispose  of  their  property, 
real  or  personal,  by  last  will  and  testament,  is  now  deter- 
mined by  statute  in  England,  and  in  most  parts  of  the  United 
States.     In  England,  the  modern  statute  1  Vict.  c.  26, 

*  525    §  7,  provides  that  *  no  will  made  by  any  person  under 

the  age  of  twent3^-one  years  shall  be  valid.  This  went 
into  effect  in  1838.^  And  the  provisions  of  this  statute  have 
been  substantially  enacted  either  before  or  since  in  most  of 
the  American  States  ;  so  that  the  policy  of  the  present  day 
may  be  said  to  exclude  ^he  testamentary  capacity  of  all  in- 
fants.^ Nor  is  this  unjust ;  for  the  law  itself  draws  up  as 
good  a  will  for  children  as  they  are  likely  to  make  for  them- 
selves. 

But  the  ancient  rule  was  otherwise :  namely,  to  the  effect 
that  males  at  fourteen  and  females  at  twelve  might  make  wills 
of  their  personal  property ;  thus  conforming  to  the  older  rule 
of  the  civil  and  canon  law.^  And  such,  as  we  have  seen,  was 
the  age  when  a  testamentary  gu^'dian  could  be  appointed. 
But  though  no  objection  was  admissible  to  the  probate  of 
wills  in  the  ecclesiastical  courts,  merely  for  want  of  age,  yet 
if  it  could  be  shown  that  the  testator  was  not  of  sufficient 
discretion,  whether  of  the  age  of  fourteen,  or  four  and 
twenty,  that  would  overthrow  the  testament.*  This  always 
operated  to  discourage  such  wills  from  being  made.  And  yet 
the  objection  was  not  insuperable;  for  there  is  a  clear  instance 
on  record  where  an  infant  sixteen  years  of  age  made  a  testa- 
ment in  favor  of  his  guardian  and  schoolmaster,  which  was 
established  by  evidence  of  the  child's  capacity  and  free  will.^ 

The  English  text-writers,  with  reference  to  the  old  law, 
have  laid  it  down  that  express  approval  of  a  former  Avill  after 
the  infant  had  accomplished  the  years  of  fourteen  or  twelve, 
would  make  it  strong  and  effectual.''     But  as  concerns  the 

1  See  also  20  &  21  Vict.  c.  77. 

2  1  Redf.  Wills,  15-18;  4  Kent  Com.  506,  507. 

3  1  Wms.  Ex'rs,  15  ;  1  Redf.  Wills,  15-17.  But  there  are  some  irreconcilable 
opinions  on  the  subject  to  be  found  in  the  old  books.  See  Co.  Litt.  89  b,  Mar- 
grave's note. 

*  2  Bl.  Com.  497  ;  1  Wms.  Ex'rs,  15. 

5  Arnold  v.  Earle,  2  Cas.  temp.  Lee,  529. 

«  1  Wms.  Ex'rs,  16;  Swinb.  pt.  2,  §  2,  pi.  7 ;  Bac.  Abr.  Wills,  B. 

[562] 


THE   GENERAL  DISABILITIES   OF  INFANTS.  *  525 

later  statutes,  if  not  as  a  general  principle  for  modern 
times,  it  appears  *  pretty  clear  that  where  a  will  is  *  526 
required  to  be  in  writing,  and  executed  before  wit- 
nesses, in  order  to  be  valid,  and  is  thus  executed  before  the 
testator  arrives  at  the  required  age,  it  cannot  be  rendered  valid 
after  the  testator  arrives  at  such  age,  except  by  republication 
with  all  the  usual  formalities.^  And  even  the  old  books 
admit  that  the  mere  circumstance  of  an  infant  having  lived 
some  time  after  the  age  when  he  became  capable  of  making 
a  will  cannot  alone  give  validity  to  one  made  during  his  inca- 
pacity.2 

The  maxims  of  the  older  law  on  this  subject  adhere  some- 
what to  American  jurisprudence  ;  for  we  find  that  in  many 
States  a  distinction  is  still  made  between  personal  and  real 
estate  as  to  the  right  of  an  infant  to  dispose  of  the  property 
by  will.2 

Infants  may  be  admitted  to  testify  in  the  courts,  if  of  suffi- 
cient understanding.  There  is  no  precise  age  at  which  the 
law  excludes  them  on  the  conclusion  that  the}^  are  mentally 
and  morally  incompetent.  By  the  common-law  rule,  every 
person  over  the  age  of  fourteen  is  presumed  to  have  common 
discretion  and  understanding  until  the  contrary  appears ;  but 
under  that  age  it  is  not  so  presumed ;  and  the  court  will, 
therefore,  make  inquiry  as  to   the  degree  of  understanding 

1  1  Redf.  Wills,  19. 

2  Herbert  v.  Torball,  1  Sid.  162  ;  Swinb.  pt.  2,  §  2,  pi.  5 ;  1  Wnis.  Ex'rs,  16. 

•*  Thus  in  Rhode  Island,  Virginia,  Arkansas,  and  Missouri,  the  age  for  mak- 
ing wills  of  real  estate  is  fixed  at  twenty-one,  and  for  disposing  of  personalty  in 
the  same  manner  at  eighteen  ;  and  in  Connecticut  at  twenty-one  for  real  estate, 
and  seventeen  for  personalty.  Among  the  States  where  the  right  to  dispose  of 
estate,  both  real  and  personal,  is  now  limited  to  persons  of  full  age,  are  Massa- 
chusetts, Vermont,  New  Hampshire,  Maine,  Ohio,  Indiana,  New  Jersey,  Ken- 
tucky, Virginia,  Pennsylvania,  Delaware,  and  Michigan.  In  some  States,  a 
distinction  is  made  between  males  and  females  as  to  testamentary  capacity,  and 
tlie  latter  may  make  wills,  as  in  Vermont  and  Maryland,  at  eigliteen.  In  New 
York  and  Illinois,  the  principle  is  to  discriminate  between  real  and  personal 
estate,  and  between  males  and  females ;  and  while  as  young  as  sixteen  a  female 
in  the  former  State  may  make  a  valid  will  of  personalty.  See  1  Redf.  Wills, 
18,  n. ;  4  Kent  Com.  506^  507  ;  Williams  v.  Heirs,  Busbee,  271  ;  Davis  v.  Baugh, 
1  Sneed,  477  ;  Moore  v.  Moore,  23  Tex.  637  ;  Posey  v.  Posey,  3  Strobh.  1G7  ; 
Corrie's  Case,  2  Bland  Ch.  488. 

[  563  ] 


*  526  INFANCY. 

which   the    child   offered    as  a  Avitness   may   possess.      But 
this  preliminary  examination,  which  is  made  by  the 

*  527    judge  at  discretion,  is  to  be  *  directed  to  the  point 

whether  the  witness  comprehends  the  solemn  obliga- 
tion of  an  oath ;  and  if  the  child  appears  to  have  sufficient 
natural  intelligence  to  distinguish  between  good  and  evil, 
and  to  comprehend  the  nature  and  effect  of  an  oath,  he  is 
an  admissible  witness.^  In  Indiana,  a  statute  provides  that 
all  children  over  the  age  of  ten  shall  be  presumed  to  be 
competent.  And  a  child  under  ten  years  of  age  was  deemed 
competent  to  testify,  whose  answers  when  she  was  examined 
by  the  court  disclosed  that,  though  she  was  ignorant  of  the 
nature  of  the  punishment  for  false  swearing,  yet,  she  com- 
prehended the  obligations  of  an  oath,  and  believed  that  any 
deviation  from  the  truth,  while  under  oath,  would  be  followed 
by  apj)ropriate  punishment.^  Of  the  capacity  of  such  wit- 
nesses for  comprehending  the  matter  as  to  which  they  1 3stify, 
of  the  strength  of  the  memory,  and  in  general  as*to  the  weight 
which  may  be  attached  to  their  testimony  in  any  particular 
state  of  facts,  a  jury  should  make  their  estimate  carefully. 

Children  have  been  admitted  to  testify  at  the  early  age  of 
seven,  and  even  of  five  ;  but  the  dying  declarations  of  a  child 
only  four  years  old  were  once  ruled  out,^  for  the  reason  that, 
however  precocious  the  child's  mind,  she  could  not  have  had 
that  idea  of  a  future  state  which  is  necessary  to  make  such 
declarations  admissible.^  Different  systems  of  religious  edu- 
cation render  the  judicial  test  in  this  respect  far  from  precise  ; 
for  while  there  are  cases  where  the  court  has  put  off  a  trial,  in 
order  to  specially  instruct  an  infant  witness  as  to  the  nature 
and  solemnity  of  an  oath,  this  practice  is  not  of  late  years 
strongly  countenanced  ;  the  opinion  gaining  ground  that  the 

effect  of  the   oath  upon  the  conscience  should  arise 

*  528    from  religious  *  feelings  of  a  permanent  nature  and 

1  1  Greenl.  Evid.  §367;  2  Russ.  Crimes,  590;  Rex  v.  Brazier,  1  East  P.  C. 
443;  State  v.  Whittier,  21  Me.  341. 

2  Blackwell  v.  State,  11  Ind.  196. 

a  Rex  V.  Pike,  3  Car.  &  P.  598  ;  Rex  v.  Brazier,  1  East  P.  C.  443. 
*  Rex  V.  Pike,  8  Car.  &  P.  598.     And  see  Rex  v.  Brazier,  1  East  P.  C.  443, 
1  Greenl.  Evid.  §  367;  Comnionwealtii  v.  Hutchinson,  10  Mass.  225. 

[564] 


THE   GENERAL   DISABILITIES   OF   INFANTS.  *  528 

gradual  growth.'  But  in  cases  where  the  intellect  is  suf- 
ficiently matured,  but  the  education  only  has  been  neg- 
lected, it  appears  that  a  postponement  of  the  trial  might 
properly  be  asked.^ 

On  the  principle  that  chancery  is  bound  to  see  that  an  in- 
fant litigant's  rights  and  interests  are  protected,  not  only  is  an 
unwilling  infant  not  compellable  to  testify  in  his  suit,  but  his 
deposition,  though  given  freely  on  his  part,  may  be  suppressed, 
at  the  discretion  of  the  court,  as  containing  admissions  un- 
favorable to  his  cause.^ 

With  respect  to  the  marriage  settlements  of  infants,  there 
was  formerly  considerable  controversy.  For,  on  the  one 
hand,  it  was  urged  that  infants  were  in  general  incapable  of 
entering  into  valid  contracts  with  respect  to  their  property ; 
on  the  other,  that  since  infants  might  make  a  valid  contract 
of  marriage,  they  ought  to  be  able  to  arrange  the  prelimi- 
naries. At  an  early  period  the  opinion  prevailed  in 
England,  that  the  marriage  *  consideration  communi-  *  529 
cated    to   the   contracts   of    infants,  respecting   their 

1  Rex  V.  White,  2  Leach  C.  C.  48,  n. ;  1  Greenl.  Evid.  §  367 ;  Rex  v.  Wil- 
liams, 7  Car.  &  P.  320 ;  Regina  v.  Nicholas,  2  Car.  &  K.  246. 

2  Per  Pollock,  C.  B.,  Regina  v.  Nicholas,  ib.  With  regard  to  the  weight  and 
effect  of  the  testimony  of  children,  Blackstone  observes,  that  when  the  evidence 
of  children  is  admitted,  "  it  is  much  to  be  wished,  in  order  to  render  the  evi- 
dence credible,  that  there  should  be  some  concurrent  testimony  of  time,  place, 
and  circumstances,  in  order  to  make  out  the  fact ;  and  that  a  conviction  should 
not  be  grounded  on  the  unsupported  accusation  of  an  infant  under  j-ears  of 
discretion."  4  Bl.  Com.  214.  To  this  Mr.  Phillips  replies  that  in  many  cases, 
undoubtedly,  the  statements  of  children  are  to  be  received  with  great  caution  ; 
yet  that  a  prisoner  may  be  convicted  upon  such  testimony  alone  and  unsup- 
ported ;  and  that  the  extent  of  corroboration  necessary  is  a  question  exclusively 
for  a  jury.  It  may  be  observed  that  the  preliminary  inquiry  as  to  the  com- 
petency is  not  alwaj's  of  the  most  satisfactory  description,  and  is  such  that  a 
child  might  upon  slight  practising  of  the  memory  appear  well  qualified.  Tlie 
severest  test  appears  in  the  examination  wliich  follows  ;  and  as  Mr.  Phillips  well 
concludes,  "  Independently  of  the  sanction  of  an  oath,  the  testimony  of  children, 
after  they  have  been  subjected  to  cross-examination,  is  often  entitled  to  as  much 
credit  as  that  of  grown  persons  ;  what  is  wanted  in  the  perfection  of  tlie  intel- 
lectual faculties  is  sometimes  more  than  compensated  by  the  absence  of  motives 
to  deceive."     1  Phil.  Evid.  9th  ed.  6,  7. 

3  Serle  v.  St.  Eloy,  2  P.  Wms.  386 ;  Napier  v.  Effingham,  2  P.  Wms.  403  ; 
Moore  v.  Moore,  4  Sandf  Ch.  37.  But  see  Walker  v.  Thomas,  2  Dick.  781  ; 
Bennett  v.  Welder,  15  Ind.  332. 

[  565  ] 


*  529  INFANCY. 

estate,  an  efficacy  similar  to  that  which  the  law  stamps  upon 
marriage  itself;  and  Lords  Hardwicke  and  Macclesfield  con- 
tributed to  strengthen  it,  by  maintaining  that  the  real  estate 
of  an  infant  would  be  bound  by  a  marriage  settlement.^  Lord 
Northington  later  held  to  a  different  opinion  ;  and  Lord  Thur- 
low  overturned  the  doctrine  altogether,  boldly  declaring  that 
the  contracts  of  male  and  female  infants  do  not  bind  their 
estates,  and  that  consequently  a  female  infant  cannot  be 
bound  by  any  articles  entered  into  during  minority,  as  to 
her  real  estate  ;  but  may  refuse  to  be  bound,  and  abide  by 
the  interest  the  law  casts  upon  her,  which  nothing  but  her 
own  act  after  the  period  of  majority  can  fetter  or  affect.^ 
Other  distinguished  equity  jurists,  including  Lord  Eldon, 
subsequently  expressed  their  approval  of  Lord  Thurlow's 
decision.^  And  the  rule  became  settled  within  the  last  forty 
years,  that  the  real  estate  of  a  female  infant  was  not  bound 
by  the  settlement  on  her  marriage,  because  her  real  estate 
does  not  become  by  the  marriage  the  absolute  property  of  the 
husband,  although  by  the  marriage  he  takes  a  limited  interest 
in  it.^  So  was  it  decided  that  neither  the  approbation  of  the 
parents  or  guardians,  nor  even  of  the  Court  of  Chancery, 
independently  of  positive  statute,  would  make  the  infant's 
settlements  binding.^ 

The  inconvenience  of  such  a  state  of   things   called  for 
statute  remedy ;  and  in  1855  an  act  was  jjassed  which 

*  530    enabled  male  *  infants  not  under  twenty,  and  female 

infants  not  under  seventeen,  with  the  approbation  of 
the  Court  of  Chancery,  to  make  valid  settlements  of  all  their 
property,  real  or  personal,  and  whether  in  possession,  rever- 

1  Harvey  v.  Ashley,  3  Atk  607  ;  Cannel  v.  Buckle,  2  P.  Wms.  243  ;  Peachey 
Mar.  Settl.  25  et  seq. 

-  Drury  v.  Drury,  2  Eden,  58 ;  Durnford  v.  Lane,  1  Bro.  C.  C.  115;  Clough 
V.  Clough,  5  Ves.  716. 

3  See  Peachey  Mar.  Settl.  28 ;  Milner  v.  Lord  Harewood,  18  Ves.  275;  Caru- 
thers  V.  Caruthers,  4  Bro.  C.  C.  509. 

4  Simson  v.  Jones,  2  Russ.  &  M.  376;  Campbell  v.  Ingilby,  21  Beav.  567  ;  25 
L.  J.  Eq.  760.  For  summary  of  the  English  chancery  doctrine,  see  Peachey 
Mar.  Settl.  37. 

•^  Peachey  Mar.  Settl.  53,  54  ;  ita.  29-43,  and  cases  cited  passim  ;  In  re  Waring, 
21  L.  J.  Eq.  784 ;  Simson  v.  Jones,  2  Russ.  &  M.  365  ;  Borton  v.  Borton,  16  Sim. 
552 ;  Field  v.  Moore,  25  L.  J.  Eq.  69  ;  25  E.  L.  &  Eq.  498. 
[566] 


THE   GENERAL   DISABILITIES   OF  INFANTS.  *  530 

sion,  remainder,  or  expectancy.^  The  statute  has  already 
received  some  interpretation  in  the  courts ;  and  so  much  in 
favor  was  it,  that  almost  immediately  upon  its  passage  it  was 
acted  upon  in  chancery. 

This  subject  has  received  little  attention  in  the  United 
States  ;  notwithstanding  the  plenary  jurisdiction  over  the 
estates  and  persons  of  infants  which  a  court  of  equity  is 
admitted  to  exercise  in  many  of  our  States.  But  in  New 
York  some  decisions  have  been  made,  of  a  like  tenor  with 
those  in  the  English  chancery.  Thus,  in  1831,  that  a  legal 
jointure  settled  upon  an  infant  would  bar  her  dower ;  and, 
by  analogy  to  the  statute,  a  competent  and  certain  provision 
settled  upon  the  infant  in  bar  of  dower,  to  which  there  is  no 
objection  but  its  mere  equitable  quality .^  And  in  1843,  that 
a  female  infant  was  not  bound  by  agreement  to  settle  her  real 
estate  upon  marriage.^  So,  in  Maryland,  a  female  infant  can- 
not bind  her  real  estate  by  her  marriage  settlement.^ 

An  objection  to  the  validity  of  a  marriage  settlement,  on 
the  ground  that  the  parties  to  it  were  infants,  can  only  be 
made  by  the  parties  themselves.  A  trustee  acting  under  it 
has  no  such  power. ^  But  since  privies  in  blood  can  avoid  an 
infant's  voidable  conveyance,  it  is  held  that  if  the  infant  dies 
after  making  a  settlement  of  real  estate  and  without  having 
attained  majority,  her  privies  in  blood  may  avoid  the  settle- 
ment.^ There  are  circumstances  under  which  the  infant's 
confirmation  in  part  of  a  settlement  will  be  taken  as  proof 
of  an  intention  to  confirm  the  whole  of  it.'' 

Marriage  articles  are  not  of  themselves  binding  upon 
the    infant   or   her  privies ;    but  they  are  binding  upon  the 

1  18  &  19  Vict.  c.  43.  See  Peachey  Mar.  Settl.  45.  For  construction  of  this 
statute,  see  In  re  Dalton,  39  E.  L.  &  Eq.  145;  s.  c.  6  De  G.,  M.  &  G.  201. 
But  see  Re  Catherine  Strong,  2  Jur.  n.  s.  1241 ;  5  W.  R.  107. 

2  M'Cartee  v.  Teller,  2  Paige,  511. 

3  Temple  v.  Hawley,  2  Sandf.  Ch.  153. 

4  Levering  v.  Levering,  3  Md.  Ch.  365.     See  Burr  v.  Wilson,  18  Tex.  367. 
6  Jones  V.  Butler,  30  Barb.  641. 

<>  Levering  v.  Levering,  3  Md.  Ch.  365.  See  Whitingham's  Case,  8  Rep.  42 ; 
Macphers.  Inf.  465 ;  Brown  v.  Brown,  L.  R.  2  Eq.  481. 

1  Davies  v.  Davies,  L.  R.  9  Eq.  468.  As  to  settling  a  small  fund  to  the  sep- 
arate use  of  a  chancery  ward  who  marries  the  day  after  she  comes  of  age,  see 
White  V.  Herrick,  L.  R.  4  Ch.  345. 

[567] 


♦  530  INFANCY. 

*  531    adult  Imsband.i     *  Yet  if  the  infant  dies  under  age, 

her  privies  cannot  take  the  benefits  of  the  proposed 
settlement  and  of  the  inheritance  likewise  ;  they  may  have 
the  more  beneficial,  and  that  is  all.^ 

1  Brown  v.  Brown,  L.  R.  2  Eq.  481 ;  Whichcote  v.  Lyle's  Ex'rs,  28  Penn. 
St.  73. 

2  Brown  v.  Brown,  ib. 


[568] 


ACTS  VOID  AND  VOIDABLE.  *  5S2 


*  CHAPTER    II.  532 

ACTS    VOID    AND    VOIDABLE. 

One  leading  principle  runs  through  all  cases  which  relate 
to  infants.  It  is  that  such  persons  are  favorites  of  the  law, 
which  extends  its  protection  over  them  so  as  to  preserve  their 
true  interests  against  their  own  improvidence,  if  need  be,  or 
the  sinister  designs  of  others.  This  principle  is  found  con- 
stantly in  chancery  practice.  We  have  traced  it  already  in 
eases  of  custody,  control,  and  guardianship,  —  particularly  in 
such  as  come  before  the  American  courts.  It  appears  again 
in  matters  of  legal  emancipation  and  the  minor's  right  to  his 
own  wages.  It  generally  determines  the  result  of  transactions 
between  an  infant  and  his  parent  or  guardian,  where  fraud 
and  undue  influence  are  suspected.  It  is  applied  when  a 
guardian  presents  his  accounts  for  allowance.  We  are  now 
to  see  this  same  principle  at  work  in  the  general  contracts  of 
infants,  controlling  and  regulating  them  in  great  measure,  and 
serving  better  than  any  other  to  explain  the  shifting  and  con- 
tradictory decisions  of  the  English  and  American  courts  on 
this  vexed  subject. 

Infancy  is  a  personal  privilege,  allowed  for  protection 
against  imposition.  The  general  rule  of  the  present  day  is 
that  an  infant  shall  be  bound  by  no  act  which  is  not  benefi- 
cial to  him.i  And  most  contracts  of  infants  are  divided  into 
the  two  classes  of  void  and  voidable  ;  a  third  class  —  namely, 
of  binding  contracts  —  still  remaining  for  separate  consider- 
ation in  our  next  chap '  er. 

There  is  much  confusion  in  the  older  books  on  the  sub- 
ject  of  void  and   voidable    contracts.^     The  keenness  with 

1  Smith  Contr.  225 ;  Met.  Contr.  38,  39  ;  2  Kent  Com.  234. 

2  See  Sliep.  Touch.  232;  Bac.  Abr.  Infancy  and  Age  (I),  and  cases  cited  in 
Zouch  V.  Parsons,  3  Burr.  1794. 

[  569  ] 


*  532  INFANCY. 

*  533    which  such  *  a  distinction  must  always  cut  is  an  objec- 

tion to  its  practical  use  at  the  present  clay;  yet  writers 
have  sought  to  adapt  the  weapon  to  the  infant's  wants.  They 
have  searched  for  some  infallible  test  between  void  and  void- 
able. Thus  Mr.  Bingham,  after  a  review  of  the  English  cases, 
years  ago,  concluded  that  the  only  safe  criterion  was,  that 
"  acts  which  are  capable  of  being  legally  ratified  are  voidable 
only ;  and  acts  which  are  incapable  of  being  legally  ratified  are 
absolutely  void."  ^  But  this  was  only  to  shift  the  uncertainty, 
and  replace  one  difficulty  by  another.  "What  acts  can  be  legally 
ratified  and  what  cannot  ?  As  Kent  properly  observes,  such 
a  criterion  does  not  appear  to  free  the  question  from  its  em- 
barrassment or  afford  a  clear  and  definite  test.^  Again,  a 
Massachusetts  judge  of  repute  declared,  many  years  ago,  that 
the  books  agree  in  one  result :  that  whenever  the  act  done 
may  he  for  the  infant's  benefit  it  shall  not  be  considered  void, 
but  he  shall  have  his  election,  when  he  comes  of  age,  to  affirm 
or  avoid  it ;  and  this,  he  adds,  is  the  only  clear  and  definite 
proposition  which  can  be  extracted  from  the  authorities.^ 
Even  this  rule,  though  much  better,  is  found  difficult  of 
application,  and  has  been  pronounced  unsatisfactory  in  some 
of  the  later  cases.*  Besides,  it  is  lacking  in  comprehensive- 
ness and  scope.  A  more  precise  and  intelligible  test  than 
either  was  that  applied  in  one  of  the  earlier  English  cases  by 
Ch.  J.  Eyre,  and  cited  since  with  approval  by  Judge  Story 
and  Chancellor  Kent :  ^  namely,  that  where  the  court  can 
pronounce  that  the  contract  is  for  the  benefit  of  the  infant,  as 
for  instance  for  necessaries,  then  it  shall  bind  him  ;  where  it 
can'  pronounce  it  to  be  to  his  prejudice,  it  is  void  ;  and  that 

where  it  is  of  an  uncertain  nature,  as  to  benefit  or  prej- 

*  534    udice,  it  is  void  ble  only,  and  it  is  *  in  the  election  of 

the  infant  to  affirm  it  or  not.^  The  doctrine  seems 
hardly  capable  of  a  closer  analysis ;  yet  even  this  statement 
of  the  legal  tes   is  by  no  means  cle  ir  and  conclusive. 

1  Bing.  Inf.  234.  2  2  Kent  Com.  234. 

3  Per  Parker,  C.  J.,  Whitney  v.  Dutch,  14  Mass.  457.     See  2  Kent  Com. 
234  ;  Met.  Contr.  39. 

4  Met.  Contr.  40;  1  Am.  Lead.  Cas.  4th  ed.  242. 

5  See  United  States  v.  Bainbridge,  1  Mason,  82;  2  Kent  Com.  236;  McGan 
V.  Marshall,  7  Humph.  121.  6  Keane  v.  Boycott,  2  H.  Bl.  511. 

[570] 


ACTS   VOID   AND   VOIDABLE.  *  53 J: 

The  equitable  doctrine  differs  not  from  the  legal  as  to  the 
contracts  of  infants.  In  general,  when  a  contract  may  he  for 
the  benefit  or  to  the  prejudice  of  an  infant,  he  may  avoid  it,  as 
well  in  equity  as  at  law.  Where  it  can  never  be  for  his  bene- 
fit, it  is  utterly  void.  Infants  are  favored  in  all  things  which 
are  for  their  benefit,  and  are  saved  from  being  prejudiced  by 
any  thing  to  their  disadvantage.  For  infants  are  by  law 
generally  treated  as  having  no  capacity  to  bind  themselves 
from  the  want  of  sufficient  reason  and  discernment  of  under- 
standing. In  regard  to  their  acts,  some  are  voidable  and 
some  are  void ;  so  in  regard  to  their  contracts,  some  are  void- 
able and  some  are  void.^  The  liberality  and  freedom  exer- 
cised in  common-law  courts  at  the  present  day,  in  shaping 
general  doctrines  with  reference  to  infants  and  their  con- 
tracts, must  be  ascribed  in  a  large  degree  to  the  influence  of 
the  equity  tribunals  and  their  decisions. 

"  In  short,"  as  Judge  Story  observes,  "  the  disabilities  of 
an  infant  are  intended  by  law  for  his  own  protection,  and  not 
for  the  protection  of  the  rights  of  third  persons  ;  and  his  acts 
may,  therefore,  in  many  cases,  be  binding  upon  him,  although 
the  persons,  under  whose  guardian- hip,  natural  or  positive, 
he  then  is,  do  not  assent  to  them."^  Where  t'.e  contract  is 
voidable,  not  void,  the  infant  has  his  election  to  avoid  it 
either  during  his  minority  or  wit'dn  a  reasonable  time  after 
he  attains  majority ;  otherwise  it  is  taken  to  have  been  con- 
firmed, and  so  binds  him  forever. 

The  privilege  of  avoiding  his  acts  or  contracts,  where  these 
are  voidable,  is  a  privilege  personal  to  the  infant,  which  no 
one  can  exercise  for  him,  except  his  heirs  and  legal  represent- 
atives.^ Hence,  the  other  contracting  party  remains  bound 
though  the  infant  be  not ;  for  being  an  indulgence  which  the 
law  allows  infants,  to  secure  them  from  the  f  aud  and  impo- 
sition of  others,  it  can  only  be  intended  for  their  bene- 
fit, and  *  is  not  to  be  extended  to  persons  of  the  years    *  535 

1  1  Story  Eq.  Juris.  §§  240,  241 ;  1  Fonbl.  Eq.  b.  1,  ch.  2,  §  4.  And  see  Tur- 
pin  V.  Turpin,  16  Oliio  St.  270. 

-  United  States  v.  Bainbridge,  1  Mason,  83. 

»  lb. ;  Keane  v.  Boycott,  2  H.  Bl.  511 ;  Met.  Contr.  38  ;  Smith  Contr.  231. 

[571] 


*  535  INFANCY. 

of  discretion,  who  are  presumed  to  act  with  sufficient  cau- 
tion and  security.^  And  were  it  otherwise,  this  privilege, 
instead  of  being  an  advantage  to  the  infant,  would  in  many- 
cases  turn  out  greatly  to  his  detriment. 

Thus,  where  a  person  of  full  age  promises  to  marry  a  minor 
and  afterwards  breaks  off  the  match,  he  may  be  sued  by  the 
minor  upon  this  contract;  though  he  would  have  had  no  cor- 
responding remedy  against  the  minor  for  breach  of  promise.'-' 
So  a  third  person,  not  a  party  to  the  contract,  cannot  take 
advantage  of  the  infancy  of  the  parties.  Thus,  in  an  action 
for  seducing  a  servant  from  his  master's  service,  the  defend- 
ant cannot  justify  on  the  ground  that  the  servant  was  an 
infant,  and  therefore  not  by  law  bound  to  perform  his  con- 
tract for  service  made  with  the  master.^  On  the  same  prin- 
ciple (connected  with  others),  the  acceptor  of  a  bill  of 
exchange,  or  the  maker  of  a  promissory  note,  cannot  resist 
payment  in  a  suit  by  an  indorsee,  though  tJie  indorser  be  an 
infant.^  Nor  can  the  purchaser  at  a  sale  under  an  execution 
set  up  infancy  to  defeat  prior  transactions  of  the  judgment 
debtor.^  Nor  can  the  vendor  avoid  the  infant's  purchase  on 
such  a  ground.^  Nor  is  a  stranger  permitted  to  impeach  the 
conveyance  of  an  infant.'^  So,  too,  it  seems  to  be  the  settled 
doctrine  that  infancy  does  not  protect  the  indorsers  or  sure- 
ties of  an  infant ;  or  those  who  have  jointly  entered 
*  536  into  his  voidable  undertakings.  They,  *  if  of  full  age, 
may  be  made  liable  though  the  infant  himself  escapes 
responsibility.^ 

But  third  persons  should  be  allowed  to  protect  themselves 
against  undue  liabilities  on  an  infant's  behalf.      Thus,  an 

1  Bac.  Abr.  Inf.  I.  4 ;  1  Pars.  Contr.  275 ;  Johnson  v.  Rockwell,  12  Ind.  76  ; 
Hartness  v.  Thompson,  5  Johns.  160 ;  Brown  v.  Caldwell,  10  S.  &  R.  114. 

2  Holt  V.  Ward,  2  Stra.  937  ;  Harvey  v.  Ashley,  3  Atk.  610 ;  Hunt  v.  Peake,  5 
Cow.  475;  Willard  t'.  Stone,  7  ib.  22;  Warwick  v.  Cooper,  5  Sneed,  659;  Can- 
non V.  Alsbury,  1  Marsh.  78. 

3  Keane  v.  Boycott,  2  H.  Bl.  511. 

4  Met.  Contr.  39  ;  Taylor  v.  Croker,  4  Esp.  187  ;  Nightingale  v.  Withington, 
15  Mass.  273  ;  Hardy  v.  Waters,  38  Me.  450 ;  Frazier  v.  Massey,  14  Ind.  382. 

5  Alsworth  V.  Cordtz,  31  Miss.  32.  6  Oliver  v.  Houdlet,  13  Mass.  237. 
"•  Dominick  v.  Michael,  4  Sandf.  374. 

8  Motteux  V.  St.  Aubin,  2  Black,  1133;  Jaffray  v.  Fretain,  5  Esp.  47  ;  Hart- 
ness V.  Thompson,  5  Johns.  160 ;  Parker  v.  Baker,  1  Clarke  Ch.  (N.  Y.)  136. 

[  572  ] 


ACTS  VOID  AND  VOIDABLE.  *  536 

officer  selling-  property  at  public  auction  is  not  bound  to  ac- 
cept the  bid  of  ^an  infant.^  And  although  infancy  is  a  per- 
sonal privilege,  yet  the  administrator  of  the  estate  of  an  infant 
may  avail  himself  of  the  infancy  of  his  intestate,  to  avoid  or 
uphold  a  transaction  to  which  the  latter  Avas  a  party  during 
his  life,  and  which  remained  voidable  at  his  death. ^  And  as 
a  rule  the  right  of  avoidance  passes  to  privies  in  blood  or 
estate.^ 

The  strong  tendency  of  the  modern  cases  is  to  regard  all 
contracts  of  infants  as  voidable  only  ;  and  thus  almost  to 
obliterate  the  ancient  distinction  of  void  and  voidable  con- 
tracts altogether.*  And  the  dicta  are  of  frequent  occurrence 
at  the  present  da}^  that  deeds  and  contracts  of  an  infant  are 
not  absolutely  void,  but  voidable  only,  unless  manifestly  to 
the  infant's  prejudice-;  and  that  beneficial  contracts  are  void- 
able only  at  most.^ 

Yet  there  are  cases  where  a  contract  may  still  be  pro- 
nounced absolutely  void.  In  Regina  v.  iorc?,  an  English 
case,  the  question  arose  on  the  conviction  of  a  servant  for 
unlawfully  absenting  himself  from  his  master's  employment. 
Denman,  C.  J.,  in  delivering  the  judgment  of  the  court,  ob- 
served :  "  Among  many  objections,  one  appears  to  us 
clearly  fatal.  He  *  was  an  infant  at  the  time  of  enter-  *  537 
ing  into  the  agreement  which  authorizes  the  master  to 
stop  his  wages  when  the  steam-engine  is  stopped  working  for 
any  cause.  An  agreement  to  serve  for  wages  may  be  for  the 
infant's  benefit;  but  an  agreement  which  compels  him  to 
serve  at  all  times  during  the  term,  but  leaves  the  master  free 
to  stop  his  work  and  his  Avages  whenever  he  chooses  to  do  so, 

•  Kinney  v.  Sliowdy,  1  Hill,  544. 

-  Counts  V.  Bates,  Harp.  4G4  ;  Parsons  v.  Hill,  8  Mis.  135 ;  Turpin  v.  Turpin, 
16  Ohio  St.  270. 

3  Dominick  v.  Michael,  4  Sandf.  374  ;  Beeler  v.  Bullett,  3  A.  K.  Marsh.  281  ; 
Nelson  v.  Eaton,  1  Kedf.  (N.  Y.  Sur.)  498  ;  Jefford  v.  Ringgold,  6  Ala  544.  And 
see  supra,  p.  530 ;  Nolte  v.  Libbert,  34  Ind.  163. 

*  See  Met.  Contr.  40 ;  Shaw,  C.  J.,  in  Beed  v.  Batchelder,  1  Met.  559. 

5  See  Bidgely  v.  Crandall,  4  Md.  435;  N.  H.  M.  Fire  Ins.  Co.  v.  Noyes,  32 
N.  H.  345;  Jenkins  v.  Jenkins,  12  Iowa,  195;  Scott  v.  Buchanan,  11  Humph. 
468;  Babcock  v.  Doe,  8  Ind.  110;  Irvine  v.  Irvine,  9  Wall.  617  ;  Robinson  v. 
Weeks,  56  Me.  102. 

[573] 


*  537  INFANCY. 

cannot  be  considered  as  beneficial  to  the  servant.  It  is  in- 
equitable, and  wholly  void."  ^ 

So  an  infant's  bond  with  penalty  and  for  the  payment  of  in- 
terest is  held  to  be  void  on  the  ground  that  it  cannot  possibly 
be  for  his  benefit.^  And  a  bond  executed  by  a  minor  as  surety 
is  void.3  So  ig  a  mortgage  of  a  minor's  property  to  secure  her 
husband's  debt.'*  The  infant's  promissory  note  as  surety  is 
void.-^  And  so  is  said  to  be  a  release  by  a  minor  to  his  guar- 
dian, which  affords  the  latter  more  protection  than  a  receipt.*^ 
But,  in  Vermont,  it  was  decided  that  there  is  no  general  rule 
exempting  an  infant  from  paying  interest  as  necessarily  injuri- 
ous to  him."  An  infant's  release  of  his  legacy  or  distributive 
share  is  held  to  be  void  in  Tennessee.^  In  such  cases,  an  in- 
fant is  called  upon  to  become  the  j)arty  to  some  undertaking 
substantially  for  the  benefit  of  another,  and  not  for  his  own 
profit.  The  construction  of  a  local  statute  will  in  some  cases 
determine  that  an  instrument  is  void,  not  voidable.^  And  an 
assignment  by  the  infant  in  trust  for  the  benefit  of  creditors 
is  held  in  New  York  void  and  not  voidable.^'' 

Now  it  is  admitted  that  the  decisions  are  frequently  con- 
tradictory and  uncertain  ;  yet  these  cases  of  void  contracts 
almost  invariably  proceed  upon  the  doctrine  that  the  infant's 
act  was  prejudicial  to  his  interest ;  and  certainly  if  any  con- 
tract can  be  so  pronounced  on  mere  inspection,  it  is  a  contract 
whereby  an  infant  becomes  bound  upon  another's  debt.  The 
technical  form  of  the  transaction  is  of  less  importance. 
*  538  There  *  are  many  cases  where  an  infant's  bonds,  mort- 
gages, and  promissory  notes  have  been  held  not  void, 
but  under  the  circumstances  of  the  case  voidable  only,  as 
where  given   in  ordinary  transactions    which   may  possibly 

1  Regina  v.  Lord,  12  Q.  B.  757. 

2  Baylis  v.  Dineley,  3  M.  &  S.  477  ;  Fisher  v.  Mowbray,  8  East,  330. 

3  Allen  V.  Minor,  2  Call,  70 ;  Met.  Contr.  40 ;  Carnahan  v.  Allderdice,  4  Har- 
ring.  99. 

4  Chandler  v.  McKinney,  6  Mich.  217  ;  Cronlse  v.  Clark,  4  Md.  Ch.  403.  See 
Colcock  V.  Ferguson,  3  Desaus.  482. 

^  Maples  V.  Wightman,  4  Conn.  376;  Curtin  v.  Patton,  11  S.  &  R.  305; 
Nightingale  v.  Withington,  15  Mass.  272. 

6  Fridge  v.  State,  3  Gill  &  Johns.  115. 

7  Bradley  v.  Pratt,  23  Vt.  378.  8  Langford  v.  Frey,  8  Humph.  443. 
9  Hoyt  V.  Swar,  53  111.  134.                       '»  Yates  v.  Lyon,  01  Barb.  205. 

[574] 


ACTS  VOID  AND  VOIDABLE.  *  538 

prove  beneficial  with  relation  to  the  minor's  property .^  And 
reference  to  the  later  cases  will  show  that  the  modern  rule 
is  broadly  announced  in  many  States,  that  an  infant's  prom- 
issory note,  his  statutory  recognizance  and  his  mortgage, 
whether  of  real  estate  or  chattels,  are  all  voidable  and  not 
void  in  general.^  This  we  conceive  to  be  the  reasonable  view 
of  the  subject ;  the  rule  of  voidable  rather  than  void,  apply- 
ing wherever  the  transaction  was  not  from  its  very  nature 
such  as  could  be  pronounced  prejudicial  to  the  infant's  in- 
terest. 

It  is  true,  however,  that  the  decisions  are  not  invariably 
placed  by  the  court  upon  this  ground.  The  rule  of  Perkins, 
which  was  adopted  by  the  Court  of  King's  Bench  in  the  cele- 
brated case  of  Zoueh  v.  Parsons,  is  that  all  deeds  of  an  infant 
which  do  not  take  effect  by  delivery  of  his  hand  are  merely 
void,  and  all  such  as  do  take  effect  by  delivery  of  his 
hand  are  voidable.  In  the  one  case  an  interest  is  conveyed, 
in  another  a  mere  power.^  This  case  has  come  down  as 
authority  for  all  future  times  ;  and  the  rule  has  frequently 
been  cited  with  approval,  in  support  of  mortgages,  bonds, 
and  deeds;  but  we  question  the  propriety  of  its  modern 
application  as  a  principle,  however  useful  in  describing  an 
incident.  So  manual  delivery,  it  was  said,  must  accompany 
the  sale  of  an  infant's  personal  property  to  render  it  valid."^ 
The  real  reason  of  such  a  rule  might  have  been  that  solemn  in- 
struments and  transactions  of  grave  importance  ought 
not  to  be  lightly  entered  upon  ;  but  it  is  clear  that  *  ere    *  539 

1  State  V.  Plaisted,  43  N.  H.  413;  Roberts  v.  Wiggin,  1  N.  H.  73;  Richard- 
son V.  Boriglit,  9  Vt.  368  ;  Palmer  v.  Miller,  25  Barb.  399  ;  Reed  v.  Batchelder, 

1  Met.  559 ;  Patclikin  v.  Cromack,  13  Vt.  330 ;  Coiiroe  v.  Birdsall,  1  Johns.  Cas. 
127  ;  Everson  v.  Carpenter,  17  Wend.  419  ;  Monumental,  &c.,  Association  i'.  Her- 
man, 33  Md.  128;  Dubose  v.  Wheddon,  4  M'Cord,  221;  Little  v.  Duncan,  9 
Rich.  55.  See  Adams  v.  Ross,  1  Vroom  (N.  J.),  505;  Garin  v.  Burton,  8 
Ind.  G9.  But  see  M'Minn  v.  Richmond,  6  Yerg.  9  ;  Beeler  v.  Young,  1  Bibb, 
619. 

'^  See  e.  g.  Goodsell  v.  Myers,  3  Wend.  479 ;  Reed  v.  Batchelder,  1  Met.  559 ; 
Patchkin  v.  Cromack,  13  Vt.  3-30;  State  v.  Plaisted,  43  N.  H.  413,  and  cases 
cited  ;  Palmer  v.  Miller,  25  Barb.  399;  Mustard  v.  Wohlford.  15  Gratt.  329. 

3  Perkins,  §  12  ;  Zouch  v.  Parsons,  3  Burr.  1804  ;  Boot  v.  Mix,  17  Wend.  131 ; 

2  Kent  Com.  236,  237,  n. ;  State  v.  Plaisted,  43  N.  H.  413 ;  Conroe  v.  Birdsall,  1 
Johns.  Cas.  127. 

*  Ponda  V.  Van  Home,  15  Wend.  631. 

[575] 


*  539  INFANCY. 

the  present  day  much  of  the  ancient  veneration  for  parch- 
ment deeds  under  seal  had  disappeared ;  while  the  ten- 
dency is  to  place  real  and  personal  estate  transactions  on 
much  the  same  footing,  distinguishing  rather  by  the  value 
than  the  nature  of  the  property. 

It  is  held  that  an  infant  may  make  a  voidable  purchase  of 
land  ;  for,  says  Lord  Coke,  striking  the  legal  principle  with 
wonderful  clearness  for  that  day,  "  it  is  intended  for  his  benefit, 
and  at  his  full  age  he  may  either  agree  thereunto  and  perfect 
it,  or,  without  any  cause  to  be  alleged,  waive  or  disagree  to 
the  purchase."  ^  For  this  reason,  rather  than  the  technical 
one  just  referred  to,  it  may  be  said  in  general  that  the  convey- 
ance of  land  by  a  minor  is  also  voidable  and  not  void  ;  though 
here  again  the  courts  have  been  prone  to  cite  the  rule  of 
Perkins.^  But  the  decided  cases  usually  presume  that  a 
valuable  consideration  has  passed  to  the  infant,  of  at  least 
that  there  is  nothing  prima  facie  prejudicial  to  him.  Lord 
Chancellor  Sugden,  in  1842,  in  Allen  v.  Allen,  took  occasion 
to  review  Lord  Mansfield's  decision  in  Zouch  v.  Parsons,  and 
commended  it  as  sound  law  in  respect  that  a  deed  which  takes 
effect  b}^  deliver}^,  and  is  executed  by  an  infant,  is  voidable 
only  ;  though  he  intimated  that  his  own  decision  might 
equally  well  be  referred  to  the  benefit  arising  to  the  hifant 
from  the  deed ;  which,  indeed,  was  one  of  the  grounds  on 
which  Lord  Mansfield  had  decided  that  celebrated  case.^ 
So  leases  to  infants  are  not  absolutely  void  ;  but  voidable 

only.*   And  an  exchange  of  property  made  by  an  infant 
*  540    is  *  voidable.^   And  it  is  held  that  the  infant's  bond  for 

title  to  real  estate  is  voidable  and   not  void.^     So  a 
power  of  attorney  to  authorize  another  to  receive  seisin  of 

1  Co.  Litt.  2  h ;  Met.  Contr.  40 ;  Bac.  Abr.  Inf.  6  ;  Ferguson  v.  Bell,  17  Mis. 
347.    And  see  Spencer  v.  Carr,  45  N.  Y.  406. 

2  Kendall  v.  Lawrence,  22  Pick.  540 ;  Gillet  v.  Stanley,  1  Hill,  121 ;  Bool  v. 
Mix,  17  Wend.  119 ;  Wheaton  v.  East,  5  Yerg.  41 ;  Phillips  v.  Green,  5  Monr. 
344 ;  Eagle  Fire  Ins.  Co.  v.  Lent,  6  Paige,  635 ;  Pitcher  v.  Laycock,  7  Ind.  398. 
See  Welborn  v.  Rogers,  24  Geo.  558. 

»  Allen  V.  Allen,  3  Dm.  &  War.  340.     See  Co.  Litt.  51  6,  n.  by  Hargrave. 
*  Zouch  V.  Parsons,  3  Burr.  1806  ;  Hudson  v.  Jones,  3  Mod.  310 ;  Taylor 
Landlord  &  Tenant,  and  cases  cited;  Griffith  v.  Schwendernian,  27  Mis.  412. 
5  Co.  Litt.  51  l> ;  Williams  v.  Brown,  34  Me.  594. 
•i  Weaver  v.  Jones,  24  Ala.  420. 

[576] 


ACTS   VOID   AND    VOIDABLE.  *  540 

land  for  an  infant,  in  order  to  complete  his  title  to  an  estate 
conveyed  to  him  by  feoffment  is  voidable  only ;  it  being  an 
authority  to  do  an  act  for  his  probable  benefit. ^ 

Where  a  minor  agrees,  as  the  consideration  of  the  convey- 
ance of  land,  to  pay  certain  debts  of  the  grantor,  and  after- 
wards does  in  fact  pay  them,  it  is  held  that  the  agreement 
constitutes  a  valuable  consideration  for  such  conveyance,  and 
will  support  it  against  the  grantor's  creditors.^ 

But  letters  of  attorney  from  an  infant  conveying  no  present 
interest  are  held  to  be  absolutely  null.  This  point  was  dis- 
cussed in  Zouch  v.  Parsons^  and  on  the  distinction  of  Perkins's 
rule,  it  was  maintained  that  writings  "  which  take  effect  "  can- 
not include  letters  of  attorney  or  deeds,  which  delegate  a  mere 
power  and  convey  no  interest.  Whatever  might  be  thought 
of  this  explanation  the  conclusion  follows :  "  that  powers  of 
attorney  are  an  exception  to  the  general  rule,  that  the  deeds 
of  infants  are  only  voidable  ;  and  a  power  to  receive  seisin  is 
an  exception  to  that.  The  end  of  the  privilege  is  to  protect 
infants  ;  and  to  that  object  all  the  rules  and  their  exceptions 
must  be  directed."  ^  And  the  English  courts  have  uniformly 
held  the  infant's  warrant  of  attorney  void,  even  though  exe- 
cuted jointly  with  others.'*  In  this  country,  there  are  deci- 
sions in  some  States  to  the  same  effect ;  ^  in  others,  again,  the 
rule  is  deemed  somewhat  doubtful.*^ 

*  A  power  of  attorney  from  an  infant  to  sell  a  note    *  541 
is  lately  held  voidable,  not  void,  in  California."     In 
Massachusetts,  an  instrument  of  assignment,  not  under  seal, 
which  appoints  the  assignee  attorney  to  receive  the  fund   to 

1  Met.  Contr.  41 ;  1  Roll.  Abr.  730  ;  Zouch  v.  Parsons,  sitpra. 

2  Washband  v.  Wasliband,  27  Conn.  424. 

3  Per  Lord  Mansfield,  in  Zouch  v.  Parsons,  3  Burr.  1804.  And  see  Cum- 
mings  I'.  Powell,  8  Tex.  88. 

*  Saunderson  v.  Marr,  1  H.  Bl.  75 ;  Ashlin  v.  Langton,  4  Moore  &  S.  719,  and 
cases  cited. 

5  Lawrence  v.  M'Arter,  10  Ohio,  37;  Waples  v.  Hastings,  3  Harring.  403; 
Bennett  v.  Davis,  6  Cow.  393 ;  Semple  v.  Morrison,  7  Monr.  298 ;  Pyle  v.  Cra- 
vens, 4  Litt.  17  ;  Kno.x  v.  Flack,  22  Penn.  St.  337. 

<^  Pickler  v.  State,  18  Ind.  266.  But  see  Trueblood  v.  Trueblood,  8  Ind.  195. 
See  Whitney  v.  Dutch,  14  Mass.  457  ;  Met.  Contr.  41 ;  Cummings  v.  Powell,  8 
Tex.  88  ;  1  Am.  Lead.  Cas.  4th  ed,  242  et  seq. 

7  Hastings  v.  Dollarhide,  24  Cal.  195. 

37  [  677  ] 


*  541  INFANCY. 

his  own  use  is  not  void.^  And  in  Maine  the  act  of  an  infant 
in  transferring  a  negotiable  note,  though  his  name  be  written 
by  another  under  parol  authority,  is  voidable  only.^  The 
good  sens,e  of  the  rule  seems  to  be,  as  a  recent  writer  observes, 
that  an  authority  delegated  by  an  infant  for  a  purpose  which 
may  be  beneficial  to  him,  or  which  the  court  cannot  pro- 
nounce to  be  to  his  prejudice,  should  be  considered  as  render- 
ino'  the  contract  made,  or  act  done  by  virtue  of  it,  as  voidable 
only,  in  the  same  manner  as  his  personal  acts  and  contracts 
are  considered.^  And,  we  may  add,  the  English  and  most  of 
the  American  decisions  do  not  seem  to  carry  the  rule  beyond 
cases  of  the  technical  "  warrant  of  attorney  "  to  appear  in 
court  and  bind  the  infant,  as  in  confessing  judgment.  What 
we  call  "  powers  of.  attorney "  are  less  likely  to  be  to  the 
infant's   prejudice. 

So  an  infant  cannot  bind  himself  by  cognovit.  "  We 
come  to  this  conclusion,"  said  Lord  Abinger,  "  on  three 
grounds,  each  of  which  is  fatal  to  the  validity  of  the  cognovit. 
First,  it  is  bad  because  it  falls  within  the  principle  which 
prevents  an  infant  from  appointing  and  appearing  in  court  by 
attorney  ;  he  can  appear  by  guardian  only.  Secondly,  by 
this  means  the  minor  is  made  to  state  an  account,  which  the 
law  will  not  allow  him  to  do,  so  as  to  bind  himself ;  if  an 
action  be  brought  against  him,  the  jury  are  to  determine  the 
reasonableness  of  the    demand   made.     Thirdly,   the 

*  542    general  principle  of  law  is,  *  that  a  minor  is  not  to  be 

allowed  to  do  any  thing  to  prejudice  himself  or  liis 
rights."  * 

A  sale  to  an  infant  is  a  valid  transfer  of  the  property  out  of 
the  vendor ;  even  though  the  infant  be  not  bound  afterwards 
to  pay  the  stipulated  price.^  But  the  courts  are  very  reluc- 
tant to  allow  the  infant  to  use  his  privilege  as  a  means  of 
defrauding  others.     And  where  an  infant  purchased  and  took 

1  McCarty  v.  Murray,  3  Gray,  578.  And  see  Kingman  v.  Perkins,  105  Mass. 
111. 

2  Hardy  v.  Walters,  38  Me.  450. 

8  Met.  Contr.  42.     And  see  Powell  i-.  Gott,  13  Mis.  458. 
*  Oliver  i;.  Woodroffe,  4  M.  &  W.  653  (1839).     But  the  second  of  these 
grounds  is  not  now  tenable.     See  Williams  i;.  Moor,  11  M.  &  W.  256. 
5  Crymes  v.  Day,  1  Bail.  320. 

[578] 


ACTS  VOID  AND  VOIDABLE.  *  542 

possession  of  property  and  afterwards  delivered,  under  his 
agreement  with  the  vendor,  certain  other  property  in  satisfac- 
tion of  the  purchase,  it  was  held  that  he  could  not  recover  what 
he  had  delivered  in  an  action  of  trover.^  So  if  one  receives 
rents  while  an  infant,  he  cannot  demand  them  over  again 
upon  reaching  majority .^  But  it  is  held  that  receiving  an 
order  in  payment  does  not  prevent  an  infant  from  afterwards 
avoiding  his  own  sale/^ 

An  infant  may  in  some  States  avoid  his  usurious  contracts, 
and  recover  the  money  so  lent  under  the  count  for  money  had 
and  received.'*  But  the  policy  of  usury  is  becoming  aban- 
doned in  many  parts  of  the  country. 

An  infant  may  avoid  his  release  of  damages  for  an  injur}- 
or  an  award  upon  a  submission  entered  into  by  him.  But  if, 
upon  trial,  the  jury  shall  find  such  damages  to  have  been 
satisiied  by  an  adequate  compensation,  the  infant  shall  recover 
nominal  damages  onl}-.^  The  rule  is  general  that  an  infant 
is  not  bound  by  his  agreement  to  refer  a  dispute  to  arbitra- 
tion;  nor  by  an  award,  even  in  his  own  favor ;  though  this 
is  usuall}^  voidable  only.*^ 

Amons  the  acts  of  the  infants  which  are  in  the  later  cases 
regarded  as  voidable  and  not  void  are  the  following. 
His  deed  *  of  gift  to  a  trustee.'^  His  appeal  from  a  *  543 
justice's  decision.^  Judgments  against  him.^  His 
covenant  to  carry  and  deliver  money. ^"^  His  indorsement  of  a 
note.^^  His  agreement  to  convey. ^^  And,  in  short,  deeds  and 
instruments  under  seal,  with  perhaps  the  exception  of  powers 
of  attorney;  though  it  is  otherwise,  perhaps,  if  the  instrument 
should  manifestly  ajipear  on  the  face  of  it  to  be  fraudulent  or 
otherwise  to  the  prejudice  of  the  infant ;  "  and  this,"  says 

1  Farr  v.  Sumner,  12  Vt.  28. 

2  Parker  v.  Elder,  11  Humph.  546. 

■^  Abcll  V.  Warren,  4  Vt.  149.     And  see  fiirtlier,  cli.  5,  post. 
*  Millard  v.  Hewlett,  19  Wend.  301.  »  Baker  v.  Lovett,  0  Mass.  78. 

6  Watson  on  Awards,  cli.  3,  §  1 ;  Smith  Contr.  280 ;  Britton  v.  Williams,  6 
Munf.  453;  Barnaby  v.  Barnaby,  1  Pick.  221.     See  Guardian  and  Ward,  SM/)r«. 
■^  Slaughter  v.  Cunningham,  24  Ala.  2G0. 

8  Robbins  v.  Cutler,  G  Post.  173. 

9  Trapnail  v.  State  Bank,  18  Ark.  53  ;  Kemp  v.  Cook,  18  Md.  130. 

10  West  V.  Penny,  IG  Ala.  18G.  n  Hardy  v.  Waters,  38  Me.  450. 

12  Carrell  v.  Potter,  23  Mich.  377. 

[579] 


*  54:3  INFANCY. 

Judge  Story,  "  upon  the  nature  and  solemnity,  as  well  as  the 
operation  of  the  instrument."  ^  In  Massachusetts,  a  contract 
of  charter  to  an  infant,  though  by  parol,  is  voidable  and  not 
void.2  So,  too,  an  infant's  promise  to  pay  money  borrowed 
on  joint  account  with  another.^  And,  in  (3hio,  a  certain 
family  arrangement  between  the  administrator  of  an  estate 
and  the  creditors,  for  payment  of  debts  of  the  estate,  which 
was  clearly  beneficial  to  the  infant  heir.^ 

It  has  been  repeatedly  decided  in  England,  that  where  an 
infant  becomes  the  holder  of  shares  by  his  own  contract  and 
subscription  he  is  prima  facie  liable  to  pay  calls  or  assess- 
ments ;  but  he  may  repudiate  that  contract  and  subscription  ; 
and  if  he  does  so  while  an  infant,  although  he  may  on  arriv- 
ing at  full  age  affirm  his  repudiation,  or  receive  the  profits, 
it  is  for  those  who  insist  on  this  liability  to  make  out  the 
facts.^ 

An  absolute  gift  of  articles  of  personal  property  made  by 
an  infant  can  be  revoked  or  avoided  by  him.^  And  the  exe- 
cuted contract  of  an  infant  follows  the  same  rule  as  an  execu- 
tory one ;  he  may  rescind  the  one  as  well  as  the  other ;  the 
more  so,  where  the  other  party  can  be  put  substantially  in 
statu  quo?  But  if  before  rescission  the  adult  make  a  bona 
fide  sale  of  property  purchased  of  the  minor,  trover  will  not 
lie  against  him.^  And  it  is  held,  on  the  ground  of  an  exe- 
cuted agency,  that  money  belonging  to  an  infant  soldier  and 
received  from  him  by  his  brother  with  authority  to  use  it  for 
the  support  of  their  needy  parents,  and  so  used  by  the  brother, 
cannot  be  recovered  by  the  infant  upon  reaching  majority.^ 
But,  in  general,  an  infant  soldier's  gift  of  his  bounty  and 


1  Per  Story,  J.,  Tucker  i'.  Moreland,  10  Pet.  71 ;  2  Kent  Com.  236, 11th  ed.,  n., 
and  cases  cited.     And  see  Regina  v.  Lord,  12  Q.  B.  757. 

2  Thoni})son  v.  Hamilton,  12  Pick.  425. 

3  Kennedy  v.  Doyle,  10  Allen,  161. 

4  Turpin  v.  Turpin,  16  Ohio  St.  270. 

5  Smith  Contr.  285  ;  Newry  &  Enniskillen  R.  R.  Co.  v.  Coombe,  3  Exch.  665; 
London  &  Northwestern  R.  R.  Co.  t;.  M'Michael,  5  Exch.  114. 

«  Person  v.  Chase,  37  Vt.  647  ;  Oxley  v.  Tryon,  25  Iowa,  95. 

'  Hill  r  Anderson,  5  S.  &  M.  216 ;  Robinson  v.  Weeks,  66  Me.  102. 

8  Carr  v.  Clough,  6  Post.  280  ;  Riley  v.  Mallory,  33  Conn.  201. 

9  Welch  V.  Welch,  103  Mass.  562. 

[580] 


ACTS   VOID   AND   VOIDABLE.  *  543 

pay,    even   to   his  own   father,    is   treated  as  voidable  and 
revocable.^ 

*  The  rule  is  a  general  one  that  an  infant  cannot  *  544 
trade,  and  consequently  cannot  bind  himself  by  any 
contract  having  relation  to  trade.  "  We  know,  by  constant 
experience,"  says  Mr.  Smith,  "  that  infants  do,  in  fact,  trade, 
and  trade  sometimes  very  extensively.  However,  there  exists 
a  conclusive  presumption  of  law  that  no  infant  under  the  age 
of  twenty-one  has  discretion  enough  for  that  purpose."  ^  In 
Dilk  V.  Keighley^  the  infant  was  a  glazier,  and  the  j)erson 
who  sued  him  sought  to  make  out  that  the  goods  furnished 
were  in  the  nature  of  necessaries,  to  enable  the  infant  to  earn 
a  livelihood ;  but  this  plea  did  not  avail.^  And  an  infant, 
rescinding  a  trading  contract  with  anotlier,  is  allowed  to  re- 
cover back  in  an  action  for  money  had  and  received  a  sum 
which  he  had  paid  towards  the  purchase  of  a  share  in  the  de- 
fendant's trade,  if  without  consideration  and  he  had  actually 
derived  no  benefit  or  profit  from  the  business.'^  So,  too,  as 
an  infant  cannot  trade,  he  cannot  become  a  bankrupt,  and  a 
fiat  against  him  is  void.^ 

Yet,  even  in  trading  contracts  it  must  not  be  forgotten  that 
the  current  of  modern  decisions  is  to  make  the  transactions  of 
an  infant  voidable  and  not  void.  The  English  case  of  Goode 
V.  Harrison  is  exactly  in  point ;  where  a  person  was  held 
liable  for  goods  supplied  him  as  one  of  a  partnership,  on  the 
ground  that  the  contract  was  voidable,  not  void,  and  that 
when  the  infant  became  of  age  he  had  substantially  ratified 
his  former  act.  "  It  is  clear,"  says  Justice  Bayley,  "  that  an 
infant  may  be  in  partnership.  It  is  true  that  he  is  not  liable 
for  contracts  entered  into  during  his  infancy  ;  but   still  he 

1  Holt  V.  Holt,  50  Me.  464  ;  supra,  p.  349. 

2  Smith  Contr.  278.  See  Why  wall  v.  Champion,  2  Stra.  1083;  Dilk  v.  Keigh- 
ley,  2  Esp.  480. 

3  Dilk  V.  Keighley,  2  Esp.  480. 

«  Corpe  u.  Overton,  10  Bing.  252 ;  Holmes  v.  Blogg,  8  Taunt.  508.  See  next 
chapter. 

k  Smith  Contr.  282,  and  cases  cited ;  Belton  v.  Hodges,  9  Bing.  365.  The 
fact  that  the  sale  of  stock  was  made  to  an  infant  may  affect  the  liabilities  of  a 
stock-jobber  in  England.     Merry  v.  Nickalls,  L.  II.  7  Ch.  733. 

[581] 


*  544  INFANCY. 

may  be  a  partner.     If  he  is,  in  point  of  fact,  a  partner  during 
his   infancy,  he  may,  when   he  comes  of  age,   elect 

*  545    whether  he  will  continue  *  that  partnership  or  not.     If 

he  continue  the  partnership  he  will  then  be  liable  as  a 
partner."  ^  Nor  is  another  principle  to  be  lost  sight  of  in  trad- 
ing contracts ;  namely,  that  fraudulent  representations  and 
acts,  though  made  by  an  infant,  may  sometimes  make  his 
contract  binding  upon  him,  or  at  least  afford  a  means  of 
holding  him  answerable  for  the  transaction  ;  but  of  this  here- 
after. 

In  this  country,  it  is  likewise  admitted  that,  in  point  of  fact, 
infants  do  sometimes  trade  ;  ^  but  that,  nevertheless,  their 
trading  contracts  do  not  absolutely  bind  them,  being  voidable 
at  their  option.^  And  it  is  held  in  Massachusetts,  that  an  in- 
fant cannot  be  compelled  to  pay  for  grain  furnished  for  horses 
owned  by  a  firm  of  which  he  was  a  member,  though  the  horses 
Avere  employed  in  the  usual  business  of  the  firm,  and  though 
he  was  emancipated  by  his  father.  But  we  understand  the 
principle  of  that  decision  to  accord  with  the  English  doctrine  ; 
which  doctrine  does  not  appear  too  far  extended  in  South 
Carolina,  where  it  was  once  expressly  decided  that  a  person's 
express  or  implied  ratification  of  the  partnership  upon  reach- 
ing majority  makes  him  liable  for  a  debt  of  the  firm  contracted 
during  his  infancy,  although  he  was  ignorant  of  the  existence 
of  the  debt  at  the  time  of  such  ratification,  and  had,  on  being 
informed  of  it,  refused  to  pay  for  it."*  For  the  principle  thus 
indicated  is,  that  to  affirm  a  partnership  contract  on  reaching 
majority,  and  continuing  to  receive  its  benefits,  is  to  affirm 
it  with  its  usual  inseparable  incidents.  Certainly,  the  infant 
member  of  a  firm  should  not  be  permitted  to  derive  undue 
advantages  over  his  partner.^ 

1  5  B.  &  Aid.  147.     See  Smith  Contr.  283. 

2  Whitney  v.  Dutch,  14  Mass.  457  ;  Houston  i;.  Cooper,  Penning.  865  ;  Kitchen 
V.  Lee,  11  Paige,  107;  Beller  v.  Marchant,  30  Iowa,  350. 

3  Mason  v.  Wriglit,  13  Met.  306 ;  Kinnen  v.  Maxwell,  66  N.  C.  45. 

4  Miller  v.  Sims,  2  Hill  (S.  C),  479. 

^  See  Kitchen  v.  Lee,  11  Paige,  107.  But  see  Mlnock  v.  Shortridge,  21  Mich. 
304,  where  an  infant  refused,  on  majority,  after  the  goods  had  been  disposed  of 
and  the  partnership  closed,  to  pay  the  partnership  note,  though  recognizing  the 
partnership  in  some  other  respects. 

[582] 


ACTS   VOID   AND   VOIDABLE.  *  545 

What,  then,  is  the  difference  between  the  void  and  the  void- 
able contracts  of  an  infant  ?  Simply  this  :  that  the  void  con- 
tract is  a  mere  nullity,  of  which  any  one  can  take  advantage, 
and  which  is,  in  legal  estimation,  incapable  of  being- 
ratified  ;  *  while  a  voidable  contract  becomes  at  the  *  546 
option  of  the  infant,  though  not  otherwise,  binding 
upon  himself,  and  all  concerned  with  him.^  Acts  or  circum- 
stances, then,  which  amount  to  a  legal  ratification  serve  to 
make  the  voidable  contract  of  an  infant  completely  binding 
and  perpetually  effectual ;  and  this  period  of  ratification  is  to 
be  usually  referred  to  the  date  when  the  disability  of  infancy 
ceases,  and  he  becomes  of  full  age,  —  though  not  always. 
What  amounts  to  a  legal  ratification,  under  such  circum- 
stances, we  shall  show  in  a  subsequent  chapter.  On  the 
other  hand,  acts  or  circumstances  which  at  the  proper  time 
amount  to  disaffirmance  will  render  the  infant's  voidable  con- 
tract of  no  effect. 

An  infant's  voidable  conveyance  of  land,  which  is  a  solemn  (^)^j-^, 
instrument,  and  perhaps  his  deeds  generally  cannot  be  ^oU^w-il/ 
avoided  or  confirmed  during  his  minority .^  But  as  to  many  6"^^'^^"^^ 
other  transactions  it  is  different,  particularly  where  the  con- 
tract relates  to  personal  property.  And  the  American  cases 
seem  to  establish  clearly  the  doctrine  that  an  infant's  sale  or 
exchange  of  personal  property,  or  contract  for  such  sale  or 
exchange,  may  be  rescinded  by  him  at  any  time  during  minor- 
ity ;  and  when  the  transaction  is  thus  avoided,  the  title  to  the 
property  revests  in  the  infant.^ 

1  See  Met.  Contr.  41  ;  Story  Eq.  Juris.  §  241. 

2  Zouch  V.  Parsons,  3  Burr.  1794  ;  McCormie  v.  Leggett,  8  Jones,  425  ;  Bool 
V.  Mix,  17  Wend.  119;  Emmons  v.  Murray,  16  N.  H.  385  ;  Cummings  i".  Powell, 
8  Tex.  80  ;  Phillips  v.  Green,  A.  K.  Marsh.  87  ;  Tillinghast  v.  Holbrook,  7  R.  I. 
230. 

3  Grace  v.  Halo,  2  Humph.  27  ;  Shipman  r.  Horton,  17  Conn.  481  ;  Kitchen 
V.  Lee,  11  Paige,  107  ;  Willis  v.  Twombly,  13  Mass.  204  ;  Carry.  Clough,  6  Post. 
280;  Monumental  Building  Association  v.  Herman,  33  Md.  128;  Riley  v.  Mal- 
lory,  33  Conn.  201 ;  Briggs  v.  McCabe,  27  Ind.  327. 

[583] 


547  INFANCY. 


*54T  *  CHAPTER  III. 

ACTS    BINDING    UPON   THE   INFANT. 

We  have  seen  that  the  general  contracts  of  infants  are 
either  void  or  voidable,  and  that  the  tendency  at  this  day  is 
to  treat  them  as  voidable  only.  But  keeping  in  view  the 
principle  that  an  infant's  beneficial  interests  are  to  be  judi- 
cially protected,  we  shall  find  that  there  are  some  contracts 
which  he  ought  to  be  able  for  his  own  good  to  make  ;  some 
contracts  of  which  it  may  be  said,  that  the  privilege  of  stand- 
ing upon  a  clear  footing  is  worth  more  to  him  than  the 
privilege  of  repudiation.  Some  such  contracts  there  are, 
recognized  as  exceptions  to  the  general  rule ;  these  are 
neither  void  nor  voidable,  but  are  obligatory  from  the  out- 
set, and  thus  neither  require  nor  admit  of  ratification  on  the 
infant's  part.^ 

The  most  important  of  this  class  of  contracts  are  those  for 
necessaries  ;  which  in  fact  are  so  important,  that  they  are  often 
mentioned  as  the  only  exception  to  the  rule  of  void  and  void- 
able contracts.  The  general  signification  of  the  word  "  neces- 
saries "  has  already  been  discussed  with  reference  to  married 
women  ;  but  it  is  readily  perceived  that  what  are  necessariies 
for  a  wife  may  not  be  equally  necessaries  for  a  child,  and  what 
are  necessaries  for  young  children  may  not  be  equally  neces- 
saries for  those  who  have  nearly  reached  majority.  The  lead- 
ing principles  of  the  doctrine  of  necessaries  being  made  clear, 
and  a  rule  of  legal  classification  judicially  announced,  any 
man  of  ordinary  intelligence  knows  how  to  apply  it ;  and  yet 
juries  will  not  and  cannot  always  agree  in  their  conclusions  on 
this  point,  every  one  having  some  preconceived  notions 
*  548    of  his  own  on  topics  so  constantly  *  occurring  in  our 

•  See  Met.  Contr.  64 ;  Smith  Contr.  268  et  seq. 

[584] 


ACTS   BINDING   UPON   THE   INFANT.  *  548 

eveiy-day  life,  and  to  so  great  an  extent  involving  individual 
tastes  and  preferences. 

Plainly,  it  is  wrong  to  prevent  an  infant  from  attaining 
objects  not  only  not  detrimental,  but  of  the  utmost  advan- 
tage, to  him,  "  since,"  as  it  has  been  observed,  "  otherwise  he 
might  be  unable  to  obtain  food,  clothes,  or  education,  though 
certain  to  possess  at  no  very  distant  period  the  means  of  amply 
paying  for  them  all."  ^ 

Food,  lodging,  clothes,  medical  attendance,  and  education, 
to  use  concise  words,  constitute  the  five  leading  elements  in 
the  doctrine  of  the  infant's  necessaries.  But,  to  apply  a 
practical  legal  test,  we  must  construe  these  five  words  in  a 
very  liberal  sense,  and  somewhat  according  to  the  social 
position,  fortune,  prospects,  age,  circumstances,  and  general 
situation  of  the  infant  himself.  "  It  is  well  established  by  the 
decisions,"  says  one  writer,  "  that  under  the  denomination 
necessaries  fall  not  only  the  food,  clothes,  and  lodging  neces- 
sary to  the  actual  support  of  life,  but  likewise  means  of 
education  suitable  to  the  infant's  degree  ;  and  all  those  accom- 
modations, conveniences,  and  even  matters  of  taste,  which  the 
usages  of  society  for  the  time  being  render  proper  and  con- 
formable to  a  person  in  the  rank  in  which  the  infant  moves."  ^ 
Says  another :  "  The  word  necessaries  is  a  relative  term,  and 
not  confined  to  such  things  as  are  positively  required  for  mere 
personal  support."  ^  The  language  of  an  American  judge  is 
this :  "  It  would  be  difficult  to  lay  down  any  general  rule 
upon  this  subject,  and  to  say  what  would  or  would  not  be 
necessaries.     It  is  a  flexible,  and  not  an  absolute  term."  * 

Articles  of  mere  ornament  are  not  necessaries.  The  true 
rule  is  taken  to  be  that  all  such  articles  as  are  purely  orna- 
mental are  not  necessary,  and  are  to  be  rejected,  because  they 
cannot  be  requisite  for  any  one  ;  and  for  such  matters 
therefore  an  *  infant  cannot  be  made  responsible.  But  *  549 
if  they  were  not  of  this  description,  then  the  question 
arises  whether  they  were  bought  for  the  necessar}^  use  of  the 
party,  in  order  to  support  himself  properly  in  the  degree, 

1  Smith  Contr.  269.  2  lb.  269. 

3  Met.  Contr.  69.     And  see  Peters  v.  Fleming,  6  M.  &  ^Y.  42. 

*  Breed  v.  Judd,  1  Gray,  458,  per  Thomas,  J. 

[585] 


*  549  INFANCY. 

state,  and  station  of  life  in  which  he  moved ;  if  they  were, 
for  such  articles  the  infant  may  be  made  responsible.-*  The 
result  of  the  cases  on  both  sides  of  the  Atlantic  seems  to  be 
that  unless  the  articles  are,  both  as  to  quality  and  quantity, 
such  as  must  be  necessaries  to  any  one,  the  burden  of  proof 
lies  on  the  plaintiff  to  show  such  a  condition  of  life  of  the 
defendant  as  might  raise  to  the  rank  of  necessaries  things 
which  would  otherwise  be  considered  luxuries.^ 

In  England,  a  pair  of  solitaires  (or  shirt  fasteners)  worth 
X25,  are  not,  it  would  appear,  necessaries  for  any  infant.^ 
But  it  seems  that  presents  to  a  bride,  when  she  becomes  the 
defendant's  wife,  may  be  necessaries.*  Betting  books  are  not 
an  infant's  necessaries.^  Nor  tobacco,  though  for  a  minor  sol- 
dier.^ Nor  money  paid  to  relieve  an  infant  from  draft  for 
military  duty.''  Horses,  saddles,  harness,  and  carriages  may 
be  necessaries  under  some  circumstances ;  but  not  ordi- 
narily ;  and  this  is  the  better  doctrine,  English  and  American.^ 
Wedding  garments  for  an  infant  who  marries,  are,  within 
reasonable  limits,  necessaries.^  But  not  the  treats  of  an 
undergraduate  at  college. ^*^  Nor,  in  Arkansas,  as  it  appears, 
kid  gloves,  cologne,  silk  cravats,  and  walking-canes.^*  The 
uniform  of  an  officer's  servant  is  adjudged  a  necessary  ;  but 
not  cockades  for  his  company.^^  ^^  insurance  contract 
is  not  a  necessary .^-^     But  a  solicitor's  bill  for  preparing  a 

1  Per  Parke,  B.,  Peters  i-.  Fleming,  6  M.  &  W.  42. 

^  Smith  Contr.  272,  5tli  Am.  ed.,  Ravvle's  n.,  and  cases  cited ;  Harrison  v. 
Fane,  1  Man.  &  Gr.  550  ;  Wliarton  v.  McKenzie,  5  Q.  B.  606  ;  Rundel  v.  Keeler, 
7  Watts,  239  ;  Bent  v.  Manning,  10  Vt.  225  ;  Merriam  v.  Cunningham,  11  Cush. 
40. 

3  Ryder  v.  Wombwell,  L.  R.  4  Exch.  32. 

*  Genner  v.  Walker,  19  Law  Times  n.  s.  398 ;  3  Am.  Law  Rev.  590. 

5  lb. 

«  Bryant  v.  Richardson,  L.  R.  3  Ex.  93,  n. 

1  Dorrell  v.  Hastings,  28  Lid.  478. 

8  Harrison  v.  Fane,  1  Man.  &  Gr.  550;  Grace  v.  Hale,  2  Humph.  67;  Aaron 
V.  Harley,  6  Rich.  26;  Merriam  v.  Cunningham,  11  Cush.  40;  Beeler  v.  Young, 
1  Bibb,  519  ;  Owens  v.  Walker,  2  Strobh.  Eq.  289. 

9  Sams  V.  Stockton,  14  B.  Monr.  232. 

10  Wharton  v.  McKenzie,  5  Q.  B.  606 ;  Brooker  v.  Scott,  11  M.  &  W.  67. 
u  Lefils  V.  Sugg,  15  Ark.  137. 

12  Hands  v.  Slaney,  8  T.  R.  578 ;  Coates  v.  Wilson,  5  Esp.  52. 

13  New  Hampshire  Ins.  Co.  v.  Noyes,  32  N.  H.  345.     See  Harrison  v.  Fane,  1 

[586] 


ACTS  BINDING  UPON  THE  INFANT.       *  549 

marriage  settlement  may  be.^     Those  *  who  incline  to    *  550 
pursue  the  subject  still  further  will  find  some  interest- 
ing decisions  as  to  balls,  serenades,  suits  of  satin  and  velvet, 
and  doublets  of  fustian,  among  the  ancient  cases  which  have 
survived  the  fashions  they  describe.^ 

It  is  usual  to  leave  the  question  of  necessaries  in  each 
case  to  the  jury,  without  very  positive  directions.  But  the 
dividing  line  between  court  and  jury  is  not  in  this  respect 
clearly  marked,  as  the  latest  cases  teach  us.  Ryder  v.  Womh- 
ivell  lays  it  down  that  the  question  whether  articles  are  neces- 
saries is  one  of  fact,  but,  like  other  questions  of  fact,  should 
not  be  left  to  the  jury  unless  there  is  evidence  on  which 
they  could  reasonably  find  that  they  were.^  The  immediate 
object  of  this  decision  was  to  set  aside  a  verdict  deemed 
improper  ;  as  to  the  fitness  of  such  a  rule  in  its  broftder  appli- 
cation there  is  considerable  doubt.*  But  it  has  frequently 
been  said,  that  in  a  very  clear  case  a  judge  would  be  war- 
ranted in  directing  a  jury  authoritatively  that  some  articles, 
like  diamonds  and  race-horses,  would  not  be  necessaries  for 
any  minor.^ 

The  propriety  of  classing  education  as  among  the  neces- 
saries of  an  infant  rests  rather  upon  respectable  dicta  than 
precedents.  Lord  Coke  includes  among  necessaries  for  which 
an  infant  may  bind  himself  by  contract,  "  good  teaching  and 
instruction,  whereby   he   may  profit   himself   afterwards  ; " 

Man.  &  Gr.  550  ;  Davis  v.  Caldwell,  12  Cush.  512  ;  Bent  v.  Manning,  10  Vt.  225  ; 
Stanton  v.  Willson,  3  Day,  37 ;  Glover  v.  Ott,  1  M'Cord,  572 ;  Kundel  v.  Keeler, 
7  Watts,  2313. 

1  Helps  V.  Clayton,  17  C.  B.  n.  s.  553. 

'^  See  cases  eited  Met.  Contr.  69,  70  ;  Cro.  Eliz.  583. 

3  Ryder  v.  Wombwell,  L.  R.  4  Exch.  32. 

*  Of  this  rule,  says  Cockburn,  C.  J.,  of  tlie  Queen's  Bench,  still  later:  "I 
really  cannot  understand  it,  unless  it  means  that  it  is  to  be  a  question  of  law  for 
the  judge  to  determine  whether  the  articles  disi)uted  are,  or  are  not,  necessaries. 
If  that  is  to  be  taiten  to  be  law,  of  course  I  must  act  upon  it ;  but  I  should  cer- 
tainly have  preferred  the  law  as  it  was  previously  understood  to  be,  that  it  was 
for  the  jury  to  say  what  articles  were  reasonablj^  necessary  with  reference  to  the 
position  of  the  defendant,  the  infant."  Genner  v.  Walker,  I'J  Law  Times,  n.  s. 
898. 

*  See  Harrison  i'.  Fane,  Davis  v.  Caldwell,  and  other  cases,  supra;  Mohney 
V.  Evans,  51  Penn.  St.  80. 

[587] 


*  550  INFANCY. 

and  the  doctrine  within  strict  limits  is  undoubtedly 

*  551    correct.^     In  Vermont,  it  is  *  decided  that  a  collegiate 

education  is  not  to  be  ranked  among  those  necessaries 
for  which  an  infant  can  render  himself  absolutelj''  liable.^ 
But  the  court  seems  to  make  this  but  a  irrima  facie  rule,  and 
to  admit  that  extraneous  circumstances  might  be  shown  to 
make  even  this  a  necessary  ;  while  a  good  common-school 
education  is  strongly  pronounced  to  be  such.  And  the  judge 
adds  :  "  I  would  not  be  understood  as  making  any  allusion  to 
professional  studies,  or  to  the  education  and  training  which 
is  requisite  to  the  knowledge  and  practice  of  mechanic  arts. 
These  partake  of  the  nature  of  apprenticeships,  and  stand  on 
peculiar  grounds  of  reason  and  policy.  I  speak  only  of  the 
regular  and  full  course  of  collegiate  study."  ^ 

An  infaot  is  not  liable,  at  common  law,  for  the  expense  of 
repairing  his  dwelling-house  on  a  contract  made  by  him  for 
that  purpose ;  although  such  repairs  were  necessary  for  the 
I)revention  of  immediate  and  serious  injur}'  to  the  house.* 
So  timber  furnished  to  an  infant  for  building  on  his  own  land 
is  not  a  necessary.^  The  law  is  extremely  reluctant  to  per- 
mit an  infant's  real  estate  to  be  encumbered  in  any  possible 
way.  And  it  is  ruled  that  the  services  and  expenses  of  coun- 
sel in  a  suit  brought  to  protect  the  infant's  title  to  his  real 
estate  cannot  for  similar  reasons  be  charged  against  the  infant 
on  his  own  contract.^ 

But  the  doctrine  that  legal  expenses  cannot  be  charged  as 
necessaries  for  an  infant  appears  not  to  prevail  in  Con- 
necticut ;  and  the  more  liberal  rule  is  asserted,  that  in  cases 
where,  under  peculiar  circumstances,  a  civil  suit  is  the  only 
means  by  which  an  infant  can  procure  the  absolute  neces- 
saries which  he  requires,  power  cannot  be  denied  him  to 
make  the  necessary  contracts  for  its  commencement 

*  552    and  prosecution ;  *  for  it  would  be  a  reproach  to  the 

1  Co.  Litt.  172;  1  Si<l.  112;  Met.  Contr.  69,  n.  ;  Smith  Contr.  269,  273. 
•-'  Middlebury  College  v.  Chandler,  16  Vt.  683. 

3  Per  Royce,  J.,  ib. 

4  Tapper  v.  Caldwell,  12  Met.  559 ;  "West  v.  Gregg,  1  Grant,  53. 
*  Freeman  v.  Bridger,  4  Jones  Law,  1. 

6  Phelps  V.  Worcester,  11  N.  H.  51. 

[588] 


ACTS  BINDING  UPON  THE  INFANT.       *  552 

law  to  hold  otherwise.^  In  this  particular  case,  the  circum- 
stances justifying  relief  were  very  strong.  Moreover,  the 
English  cases  long  ago  established  that  money  advanced  to 
an  infant  to  procure  him  liberation  from  arrest,  where  he 
M-as  in  execution,  or  taken  in  custody  on  a  debt  for  neces- 
saries, could  be  recovered  as  necessaries.^  And  we  have 
already  seen  that  legal  expenses  may  sometimes  be  classed  as 
necessaries  for  married  women. ^  On  the  whole,  it  may  be 
said  that  a  lawsuit  brought  by  a  minor  may  or  may  not  be 
regarded  as  a  necessary  for  him,  according  to  circumstances. 
And  it  would  appear  that  the  burden  of  proof  is  upon  an 
attorney  to  show  that  the  suit  could  be  viewed  in  such  a  light 
so  as  to  entitle  him  to  recover  for  his  fees  and  disbursements.'^ 
Generalh%  a  guardian  or  next  friend  Avould  assume  the 
responsibility  of  employing  counsel  for  advice  or  suits  on  an 
infant's  behalf.  A  court  of  equity  will  enforce  against  an 
infant  an  agreement^  settling  a  suit  made  by  his  guardian, 
when  it  appears  to  have  been  made  for  the  infant's  benefit.^ 

The  doctrine  of  necessaries  is  manifestly  not  to  be  extended 
to  an  infant's  trading  contracts,  as  we  have  already  inti- 
mated. Thus  the  board  of  four  horses  for  six  months,  the 
principal  use  of  which  was  in  the  business  of  a  hackman,  is 
not  within  the  class  of  necessaries  for  which  an  infant  is  lia- 
ble, although  the  horses  are  occasionally  used  to  carry  his 
famil}^  out  to  ride.^  The  board  of  an  infant  again  is  included 
among  the  necessaries  for  which  he  may  pledge  his  credit.' 
But  here,  too,  we  must  keep  within  our  i)rinciple.  Thus 
where  an  infant  took  a  house  to  carry  on  the  business  of  a 
barber ;  the  house  containing  five  rooms,  two  on  the  ground 
floor,  one  of  which  he  occupied  as  a  shop,  the  other  to  reside 
in,  and  three  above  which  he  underlet  ;  he  was  held  not  to 
be  liable  for  the  rent.^  An  infant  maj-  contract  for  his  neces- 
sary lodging,  but  he  cannot  bind  himself  for  more. 

1  Munson  v.  Wasliband,  31  Conn.  303. 

-  Clarke  i'.  Leslie,  5  Esp.  28  ;  2  Eden,  72. 

»  i)iipra,  p.  78.  *  Thrall  v.  Wright,  38  Yt.  494. 

5  In  IP  Livingston,  34  N.  Y.  555. 

6  Merriam  v.  Cunningliam,  11  Cush.  40;  siij)ra,  p.  544. 

^  Bradley  v.  Pratt,  23  Vt.  378.  8  Lowe  v.  Griffith,  1  Scott,  458. 

[  689] 


*  552  INFANCY. 

But  the  question  in  all  such  cases  is  one  of  mixed  law  and 
fact.  And  articles  prima  facie  to  be  classed  as  luxuries,  such, 
as  wines,  fruits,  and  the  use  of  a  horse  and  carriage,  might, 
under  some  circumstances,  become  necessaries ;  as  if,  for  in- 
stance, medically  prescribed,  for  an  infant's  health  ;  though 
this  salutary  rule  is  not  designed  to  support  a  quibble.^  The 
infant's  clothes  may  be  fine  or  coarse,  according  to  his  rank ; 
his  education  may  vary  according  to  the  station  he  is  to  fill, 
and  the  extent  of  his  probable  means  when  of  age  ;  and  as  to 
servants,  attendance,  and  the  like,  this  will  depend  on  his 
social  position.-  Stock  purchased  for  a  farm  too,  may  under 
some  special  circumstances  be  treated  as  necessaries.^  And 
upon  such  issues,  quantity  may  be  as  much  for  the  consider- 
ation of  the  jury  as  quality.'* 

If  one  furnish  an  infant  necessaries,  and  also  other  articles 

not  necessary  under  his  circumstances  and  condition,  he  is  not 

on  that  account  precluded  froHi   recovering   for   the 

*  553    necessaries  ;  *  though,  as  to  the  balance  of  his  claim, 

he  may  be  without  a  remedy.^ 
An  infant  is  not  liable  for  necessaries  when  he  lives  under 
the  roof  of  his  father,  who  provides  every  thing  which  seems 
proper.  And  so  when  he  is  supplied  by  a  guardian  or  widowed 
mother.  The  parent  or  the  legal  protector  having  the  means, 
and  being  willing  to  furnish  all  that  is  actually  necessar}^  the 
infant  can  make  no  binding  contract  for  any  article  without 
such  protector's  consent.  Prima  facie .,  where  the  child  resides 
at  home,  proper  maintenance  is  furnished  him :  and  the 
tradesman  who  furnishes  goods  to  an  infant  does  so  at  his 
peril ;  it  is  incumbent  upon  him  to  show  the  necessity  of  a 
supply.*^     But  an  infant,  when  absent  from  home,  and  not 

1  See  Wliarton  v.  Mackenzie,  6  Q.  B.  606. 

2  See  Alderson,  B.,  Chappie  v.  Cooper,  13  M.  &  W.  258. 

3  Mohney  v.  Evans,  51  Penn.  St.  80. 

*  Burgliart  u.  Angerstein,  6  Car.  &  P.  690. 

5  Tiirberville  v.  Wliitehouse,  12  Price,  692 ;  Bent  v.  Manning,  10  Vt.  225. 
And  see  Johnson  v.  Lines,  0  W.  &  S.  80;  Wilhehn  v.  Hardman,  13  Md.  140. 

«  Bainbridge  v.  Pickering,  2  Blacks.  1325  ;  Story  v.  Pery,  4  Car.  &  P.  526  ; 
Angel  V.  M'Lellan,  16  jNIass.  28  ;  Wailing  v.  Toll,  9  Johns.  146  ;  Johnson  v. 
Lines,  6  W.  &  S.  80 ;  Kline  i-.  L'Amoreux,  2  Paige,  419;  Perrin  v.  Wilson,  10 
Mis.  451 ;  Freeman  v,  Bridger,  4  Jones  Law,  1 ;  Smith  v.  Young,  2  Dev.  &  Bat. 

[590] 


ACTS  BINDING  UPON  THE  INFANT.       *  553 

under  the  care  of  his  parent  or  guardian,  is  usually  liable  for 
his  own  necessaries.^  And  the  law  will  imply  a  promise  on 
the  part  of  an  infant  having  no  legal  j)rotector,  to  make  pay- 
ment.2  * 

*  There  is  no  inflexible  rule  of  law,  however,  which  *  554: 
makes  it  incumbent  on  the  tradesman  who  supplies  an 
infant,  to  inquire  as  to  his  situation  and  resources  before  giv- 
ing him  credit  for  necessaries  ;  though  it  would  be  prudent 
always  for  him  to  do  so.^  And  the  parent  may  sanction  by 
words  or  conduct  the  child's  purchase,  so  as  to  make  it  ob- 
ligatory. As  in  a  case  where  the  infant  daughter,  living  Avith 
her  mother  at  a  hotel,  drove  to  the  plaintiff's  store  in  a  car- 
riage, accompanied  by  her  mother,  who  waited  in  the  carriage 
while  her  daughter  purchased  the  goods,  some  of  which  she 
took  home  in  the  carriage,  while  others  were  delivered  at  the 
hotel ;  here  it  might  be  reasonably  inferred,  as  the  court 
decided,  that  the  whole  had  come  under  the  mother's  inspec- 
tion, so  as  to  make  the  infant  liable  for  the  purchase."* 

The  English  cases  seem  to  lay  especial  stress  upon  the 
question  whether  articles  are  or  are  not  of  themselves  neces- 
saries. And  it  is  held  not  only  that  an  infant  may  enter  into 
a  contract  for  necessaries  for  ready  money,  but  that  he  may 
be  bound  by  any  reasonable  contract  for  necessaries  on  a 
credit,  though  he  has  an  income  of  his  own,  and  an  allowance 
amply  sufficient  for  his  support."  In  South  Carolina,  a  con- 
trary doctrine  is  maintained ;  namely,  that  an  infant  who  is 
furnished  wath  necessaries,  or  the  means  in  cash  of  procuring 
them,  by  his  parent  or  guardian,  or  from  any  other  source,  is 
prima  facie  not  liable  for  necessaries  furnished  him  on  credit.^ 
This  is,  likewise,   the  rule  in  some  other  States.'      Claims 


26  ;  Connolly  v.  Hull,  3  McCord,  6  ;  EIrod  v.  Myers,  2  Head,  33 ;  Kraker  v. 
Byrara,  13  Ricli.  163;  Tilton  v.  Russell,  11  Ala.  497;  Hussee  r.  Roundtree, 
Busbee  Law,  110. 

1  Angel  V.  M'Lellan,  IG  Mass.  28 ;   Hunt  v.  Thompson,  3  Scam.  179. 

2  Hyman  v.  Cain,  3  Jones  Law,  111. 

3  Brayshaw  v.  Eaton,  7  Scott,  183. 

*  Dalton  V.  Gib,  5  Bing.  N.  C.  198;  Atcliison  i'.  Brutf,  50  Barb.  381. 
6  Burghart  v.  Hall,  4  M.  &  W.  727  ;  Smith  Contr.  273. 
6  Rivers  V.  Gregg.  5  Ricli.  Eq.  274.     And  see  Mortara  v.  Hall,  6  Sim.  465. 
"^  Nicliolson  V.  Wilborn,  13  Geo.  467. 

[591] 


*  554  INFANCY. 

against  an  infant  for  necessaries  being  perfectly  valid  at  law, 

the  creditor  cannot  sue  in  equity.^     And  while  it  is  true  that 

an  infant  cannot  bind  himself  when  he  has  a  parent  or  guar- 

diaA  who  supplies  his  ^A^ants,  he  may  be  bound  by  the 

*  555    purchase  *  of  necessaries  under  the  express  or  implied 

authorit}'  of  his  guardian.-  But  not  for  any  thing  ab- 
surd or  improper  in  quantity  or  quality.^  And  where  credit 
is  given  to  a  parent,  the  infant's  estate  is  not  answerable.^ 

The  rule  as  to  necessaries  in  general  is,  that  it  is  the  prov- 
ince of  the  court  to  determine  whether  the  articles  sued  for 
are  within  the  class  of  necessaries,  and,  if  so,  it  is  the  proper 
duty  of  the  jury  to  pass  upon  the  questions  of  quantity,  qual- 
ity, and  their  adaptation  to  the  condition  and  wants  of  the 
infant.^  But  as  the  reader  is  already  apprised,  this  rule  is 
neither  stated  nor  applied  with  invariable  .precision  in  all 
cases.  Generally,  the  question  is  one  of  fact  for  the  jury ; 
and  the  two  principal  circumstances  are,  whether  the  articles 
are  suitable  to  the  minor's  estate  and  condition,  and  whether 
he  is,  or  is  not,  without  other  means  of  supply.^  An  infant 
will  be  held  to  pay  for  necessaries  what  they  are  reasonably 
worth,  but  not  what  he  may  foolishly  have  agreed  to  pay  for 
them.'^  Nor  can  the  court  be  precluded,  by  the  form  of  the 
contract,  from  inquiring  into  their  real  value.^ 

An  infant  is  liable  to  an  action  at  the  suit  of  a  person  ad- 
vancing money  to  a  third  party  to  pay  for  necessaries  furnished 
to  the  infant.^  But  it  is  thought  to  be  otherwise  as  to  mone}' 
supplied  directly  to  the  infant,  to  be  by  him  thus  expended, 
notwithstanding  the  money  be  actually  laid  out  for  necessa- 
ries.^°    The  reason  for  this  distinction  is  said  to  be  that  in  the 

1  Oliver  v.  McDuffie,  28  Geo.  522.  2  Watson  v.  Hensel,  7  Watts,  344. 

3  Johnson  v.  Lines,  6  W.  &  S.  80. 

*  Sinklear  v.  Emert,  18  111.  63. 

5  Peters  v.  Fleming,  6  M.  &  W.  42;  Harrison  v.  Fane,  1  Man.  &  Gr.  550; 
Phelps  V.  Worcester,  11  N.  H.  51 ;  Merriam  v.  Cunnin_ham,  11  Gush.  40  ;  Beeler 
V.  Young,  1  Bibb,  619. 

«  Per  Shaw,  C.  J.,  Davis  v.  Caldwell,  12  Cash.  512. 

1  Locke  V.  Smith,  41  N.  H.  346. 

8  See  10  Mod.  85  ;  Met.  Contr.  73  ;  2  Kent  Com.  240. 

9  Swift  V.  Bennett,  10  Gush.  430  ;  Randall  v.  Sweet,  1  Denio,  460. 

10  Macphers.  Inf.  505,  506  ;  Ellis  v.  Ellis,  5  Mod.  368;  12  Mod.  197;  Earle  r. 
Peele,  1  Salk.  386 ;  Clarke  v.  Leslie,  5  Esp.  28. 

[592] 


ACTS   BINDING   UPON   THE   INFANT.  *  555 

latter  case  the  contract  arises  upon  the  lending,  and  that  the 
laAv  Avill  not  support  contracts  which  are  to  depend  for 
their  validity  upon  a  subsequent  *  contingency. ^  One  *  556 
writer  admits  that  according  to  some  reports  of  a  lead- 
ing case,  the  court  held  that  if  the  money  were  actually  ex- 
pended for  necessaries  the  infant  would  be  chargeable  ;  ^  but 
adds  that  the  weight  of  authority  is,  that  the  infant  is  not 
liable  at  law  for  money  thus  lent  and  appropriated. ^  What 
this  weight  of  authority  may  be,  is  not  apparent.  The  equity 
rule  is,  that  if  money  is  lent  to  an  infant  to  pay  for  neces- 
saries, and  it  is  so  applied,  the  infant  becomes  liable  in  equit}^; 
for  the  lender  stands  in  place  of  the  payee.^  And  this  is 
the  New  York  doctrine,  whether  legal  or  equitable.^  An 
innkeeper's  lien  on  the  baggage  of  his  infant  guest  has  been 
protected  in  our  courts,  notwithstanding  the  infant  acted 
improperly  and  contrary  to  his  guardian's  wishes ;  so  long  as 
the  innkeeper  acted  in  good  faith ;  and  this  even  to  the  extent 
of  protecting  the  innkeeper  for  money  furnished  the  infant 
which  was  expended  for  necessaries.^  Circuity  of  action 
should  not  be  favored  at  this  late  day,  especially  when  the 
object  is  after  all  to  enforce  a  moral  obligation  in  small  trans- 
actions. 

The  old  books  say  that  an  infant  may  bind  himself  by  his 
deed  to  pay  for  necessaries."  Yet  it  has  been  considered 
clearly  settled  that  he  cannot  do  so  by  a  bond  in  a  penal  sum ; 
since  it  cannot  be  to  his  advantage  to  become  subject  to  a 
penalty.^     But  on  the  question  whether  an  infant  is  bound 

>  See  Swift  v.  Bennett,  10  Ciisli.  436.  'i  Ellis  v.  Ellis,  12  Mod.  197. 

*  Met.  Contr.  72.  The  learned  writer  quotes  a  diclum  from  10  Mod.  07,  to 
controvert  that  of  12  Mod.  197,  which  last  held  that  money  might  be  sometimes 
properly  charged  upon  the  infant.  But  the  context  only  contemplates  tlie 
"great  difference  between  lending  an  infant  money  to  buy  necessaries,  and 
actuallji  seeing  the  money  so  laid  out."  Besides,  it  is  not  clear  which  of  the  two  is 
the  better  dirjum. 

*  Marlow  v.  Pitfeild,  1  P.  Wms.  558. 

5  Stnith  I'.  Oliphant,  2  Sandf.  306.  And  see  Randall  v.  Sweet,  1  Denio,  460, 
per  Bronson, C.  J. 

s  Watson  V.  Cross,  2  Duv.  147. 

■J  Com.  Dig.  Infant.     But  see  next  page. 

8  Ayliff  u.  Archdale,  Cro.  Eliz.  920;  Corpe  v.  Overton,  10  Bing.  252;  Smith 
Contr.  281 ;  Met.  Contr.  75. 

38  [  593  ] 


*  556  INFANCY. 

b}''  a  note  not  negotiable  given  for  necessaries,  there  is  an 
irreconcilable  difference  of  opinion  in  the  authorities  ;  though 
Story  considers  the  weight  of  modern  English  and  American 
authorities  greatl}"  in  favor  of  holding  promissory  notes  given 
or  indorsed  by  an  infant  voidable  only,  and  therefore  capable  of 
being  ratified  after  the  part}'  comes  of  age.^     The  mis- 

*  557    chief  of  holding  an  infant's  promissory  note  for  *  nec- 

essaries to  be  worthless,  is  the  same  as  in  loans  of 
money  for  the  same  purpose  ;  namely,  that  an  infant  is  thereby 
allowed  to  getJiis  supplies  without  paying  for  them.  Equity 
influences  the  later  cases ;  that  somewhat  novel  and  yet 
manifestly  just  principle  gaining  ground  that  one  who  receives 
advantages  is  liable  on  an  implied  contract  to  furnish  a  suita- 
ble recompense.  Reeve  and  others  state  the  law  thus:  that 
an  infant  is  not  bound  by  any  express  contract  for  necessaries 
to  the  extent  of  such  contract,  but  is  bound  only  on  an  im- 
plied contract  to  pay  the  amount  of  their  value  to  him  ;  that 
when  the  instrument  given  by  him  as  security  for  payment  is 
such  that,  by  the  rules  of  law,  the  consideration  cannot  be 
inquired  into,  it  is  void  and  not  merely  voidable  ;  that  when- 
ever the  instrument  is  such  that  the  consideration  may  be 
inquired  into,  he  is  liable  thereon  for  the  true  value  of  the 
articles  for  which  it  was  given.^  This  excellent  statement 
could  hardly  be  improved  upon ;  and,  for  a  topic  so  entirely 
unsettled,  is  as  well  entitled  to  be  called  good  law  as  any 
thing  else.  And,  what  is  more,  it  has  justice  in  it.  The 
doctrine  has  received  substantial  encouragement  in  Massa- 
chusetts.^ Even  a  bond  for  necessaries  has  been  deemed 
binding  in  a  State  where  the  statute  allows  its  consideration 
to  be  impeached  and  a  judgment  joro  tanto  rendered  for  the 
amount  actually  due."^  And  the  same  practical  result  seems 
to  be  reached  in  New  Hampshire,  and  other  States,  so  as 
further  to  give  the  infant's  indorser  or  surety  a  remedy 
against  him.^ 

1  Story  Prom.  Notes,  6th  ed.  §  78,  and  cases  cited.     And  see  2  Kent  Com. 
11th  ed.  257  ;  Bayley  Bills,  ch.  2,  pp.  45,  46,  5th  ed.     See  last  chapter. 
'i  Reeve  Dom.  Rel.  229,  230  ;  2  Dane  Abr.  364,  365 ;  Met.  Contr.  75. 

3  Stone  V.  Dennis,  13  Pick.  6,  7,  per  Shaw,  C.  J. ;  Earle  v.  Reed,  10  Met.  387. 

4  Guthrie  v.  Morris,  22  Ark.  411. 

5  M'Crillis  v.  How,  3  N.  H.  348;  Conn  i-.  Coburn,  7  N.  H.  868;  Dubose  v. 

[594] 


ACTS   BINDING   UPON   THE   INFANT.  *557 

In  a  late  Vermont  case,  this  later  rule  received  a  striking 
illustration.  An  infant  boarded  in  a  country  town  for  some 
twenty  weeks  at  a  reasonable  price.  The  person  to  whom  he 
was  indebted  owed  his  own  adult  son  money,  and  for  the 
convenience  of  the  parties  drew  an  order  upon  the  infant, 
authorizing  him  to  pay  the  amount  of  the  board  to  his  son ; 
which  order  was  duly  received,  and  the  infant  agreed  to  pay 
it.  Soon  after,  by  consent  of  the  parties,  this  order  was 
surrendered,  and  *  the  infant  substituted  in  its  place  *  558 
his  promissory  note.  This  note  was  negotiable,  but 
never  was  negotiated ;  and  the  holder,  the  adult  son  of  the 
person  furnishing  board,  brought  a  suit  thereon.  The  e-\d- 
dence  showed  that  the  defendant's  board  constituted  the  sole 
consideration  of  the  note.  It  was  held  that  the  consideration 
of  the  note  was  open  to  inquiry,  and  that,  upon  the  facts 
found,  the  defendant  was  liable  to  the  plaintiff  for  the  full 
amount  of  the  note  ;  and,  as  the  court  also  decided,  with 
interest.!  We  may  here  add  that  infancy  of  the  maker  of  a 
note  does  not  excuse  the  want  of  a  demand  on  him  by  the 
holder  in  order  to  charge  the  indorsee. ^ 

There  are  other  contracts  besides  necessaries  which  are 
excepted  from  the  general  rule,  and  are  made  obligatory  upon 
the  infant ;  being  neither  void  nor  voidable. 

Thus  contracts  of  marriage  are  binding,  if  executed  ;  they 
cannot  be  avoided  on  the  ground  of  infancy.     These  have 

Wlieddon,  4  M'Cord,  221;  Ilaine  v.  Tarrant,  2  Hill  (S.  C.),400;  McMinn  t-. 
Richinonds,  6  Yerg.  9.     See  contra,  Swasey  v.  Vaiiderhcyden,  10  Johns.  33. 

'  Bradley  v.  Pratt,  23  Vt.  378.  Says  the  learned  jud<;e  who  gave  the  opinion 
in  this  case,  after  a  full  examination  of  the  conflicting  authorities  as  to  the  in- 
fant's liability  on  his  promissory  note  for  necessaries  :  "  We  may  then,  we  think, 
regard  the  question  as  still  in  dnhio,  and  justifying  the  court  in  treating  it  as  slill 
an  open  question.  And  being  so,  we  should  desire  to  put  it  upon  safe  and  con- 
sistent ground.  We  are  led,  then,  to  inquire  what  is  the  true  principle  lying  at 
the  foundation  of  all  these  inquiries.  We  tliink  it  is,  that  the  infant  should  be 
enabled  to  pledge  his  credit  for  necessaries  to  any  extent  consistent  with  his 
perfect  safety.  All  the  cases  and  all  the  elementary  writers  expressly  hold  that 
it  is  for  the  benefit  of  the  infant  that  he  should  be  able  to  contract  for  neces- 
saries ;  and  we  see  no  reason  why  he  may  not  be  allowed  to  contract  in  the 
ordinary  modes  of  contracting,  so  far  as  his  perfect  safety  is  maintained  always." 
See  Tiling  v.  Libbey,  10  Me.  55. 

-  Wyraan  v.  Adams,  12  Cush.  210. 

[595] 


*  00 8  INFANCY. 

been  considered  in  another  connection.^  So,  too,  the  general 
rights  and  liabilities  of  a  husband  as  to  custody,  maintenance, 
and  the  like,  which  are  incidental  to  the  marriage  relation, 
apply  to  infants  as  to  adults.^  So  is  a  contract  for  the 
burial  of  a  spouse  held  beneficial  and  binding  upon  an  in- 
fant.3 

*  559        *  The  acts  of  an  infant  that  do  not  touch  his  interest, 

but  which  take  effect  from  an  authority  which  he  is  by 
law  trusted  to  exercise,  are  binding ;  as  if  an  infant  executor 
receives  and  acquits  debts  to  the  testator,  or  an  infant  officer 
of  a  corporation  joins  in  corporate  acts,  or  any  other  infant 
does  the  duties  of  an  oifice  which  he  may  legally  hold.^  And 
his  conveyance  of  land  which  he  held  in  trust  for  another,  in 
accordance  with  the  trust,  is  not  to  be  disaffirmed  b}'  him  on 
the  ground  of  infancy ;  a  principle  which  may  extend  some- 
times to  conveyances  from  a  parent  made  to  defraud  creditors.^ 
This  seems  to  arise  from  the  consideration  which  the  law  pays 
to  the  rights  of  others  besides  the  infant ;  or,  to  put  it  differ- 
ently, the  doctrine  may  rest  upon  this  fact,  that  the  infant  in 
such  cases  does  not  act  as  an  infant.  So  the  acts  of  the  king 
cannot  be  avoided  on  the  ground  of  infancy ;  partly  for  the 
same  reasons,  partly  as  one  of  the  attributes  of  his  sover- 
eignty.^ This  attribute  of  sovereignty  may  perhaps  enter  as 
an  element  into  the  public  acts  t)f  infants  in  this  countr}' 
who  are  improperly  chosen  to  civil  offices,  yet  whose  official 
acts  should  be  sustained. 

It  is  held  that  infants  and  married  women,  owning  proprie- 
tary rights  in  townships,  are  not  by  reason  of  legal  incapacity 
prevented  from  being  bound  by  the  acts  of  proprietors  at  legal 
meetings.'  And  the  same  is  doubtless  true  of  infant  share- 
holders in  corporations  generally.     Their  incapacity  would, 

^  See  Husband  and  Wife,  ch.  1 ;  Bonney  v.  Reardin,  6  Bush,  34. 

2  Bac.  Abr.  Infancy  and  Age  (B)  ;  3  Burr.  1802;  Met.  Contr.  66. 

»  Chappie  V.  Cooper,  13  :\I.  &  W.  259. 

«  Met.  Contr.  66.  See  Butler  v.  Break,  7  Met.  16i  ;  Roach  v.  Quick,  9  Wend. 
238. 

5  Prouty  V.  Edgar,  6  Clarke  (Iowa),  353;  Starr  v.  Wright,  20  Ohio  St.  97; 
Elliott  V.  Horn,  10  Ala.  348. 

t*  Met.  Contr.  66. 

'  Townsend  v.  Downer,  32  Vt.  183. 

[596] 


ACTS   BINDING  UPON   THE  INFANT.  ♦  559 

otherwise,  block  the  wheels  of  business  altogether  in  matters 
where  it  is  really  property  and  not  persons  that  are  usually 
represented. 

An  infant  defendant  is  as  much  bound  by  a  decree  in  equity 
as  a  person  of  full  age  ;  therefore,  if  there  be  an  absolute 
decree  made  against  a  defendant,  who  is  under  age,  and  wdio 
has  regularly  appeared  by  a  guardian  ad  litem,  he  Avill  not  be 
permitted  to  dispute  it  unless  upon  the  same  grounds  as  an 
adult  might  have  disputed  it ;  such  as  fraud,  collusion,  or 
error. ^  As  to  the  binding  force  of  judgments  at  law,  the  rule 
does  not  seem  to  be  equally  strong.^  But  where  a  defendant 
in  a  suit  is  a  minor  at  the  time  of  service  of  summons,  and  tlie 
record  shows  that  he  becomes  of  full  age  before  the  judgment 
is  taken,  a  court  is  disposed  to  uphold  the  judgment  unless  it 
can  be  impeached  for  fraud.-^ 

It  is  an  old  and  well-settled  doctrine  that  an  infant 
will  be  *  bound  by  any  act  which  the  law  would  have  *  560 
compelled  him  to  perform  ;  as  if  the  infant  make  equal 
partition  of  lands,  or  assign  dower,  or  release  an  estate  mort- 
gaged on  satisfaction  of  the  debt.*  But  it  is  held  that  this 
rule  does  not  apply  to  the  case  of  a  voluntary  distribution  ; 
for  the  law,  though  it  would  have  coerced  a  distribution, 
might  not  have  made  just  such  a  one  as  was  made  by  the 
parties.^ 

Enlistments  are  binding  contracts  under  the  public  stat- 
utes.*^ Whenever  a  statute  authorizes  a  contract  which  from 
its  nature  or  objects  is  manifestly  intended  to  be  performed 
by  infants,  such  a  contract  must,  in  point  of  law,  be  deemed 
for  their  benefit  and  for  the  public  benefit ;  so  that  when  bo?m 

1  1  Dan.  Ch.  Practice,  205  ;  Rivers  v.  Durr,  46  Ala.  418  ;  Ralston  v.  Lahee, 
8  Clarke  (Iowa),  17  ;  In  re  Livingston,  34  N.  Y.  555.  But  see  Tibbs  v.  Allen 
27  111.  119  ;  Driver  v.  Driver,  6  Ind.  286  ;  Asliton  v.  Ashton,  35  Md.  496;  infra, 
p.  598. 

2  Supra,  p.  543. 

'  Stupp  V.  Holmes,  48  Mis.  89.     And  see  Blake  v.  Douglass,  27  Ind.  416. 

*  Co.  Litt.  38  o,  172  a  ;  3  Burr,  1801  ;  Met.  Contr.  67;  Jones  v.  Brewer,  1  Pick. 
314;   Bavington  v.  Clarke,  2  Penn.  115;  Prouty  v.  Edgar,  6  Clarke  (Iowa),  353. 

5  Kilcrease  v.  Shelby,  23  Miss.  161. 

<>  King  V.  Rotherfield  Greys,  1  B.  &  C.  345 ;  Commonwealth  v.  Gamble,  11  S. 
&  R.  93 ;  United  States  t;.  Bainbridge,  1  Mason,  83,  before  Story,  J. 

[597] 


*  560  INFANCY. 

iide  made  it  is  neither  void  nor  voidable,  but  is  strictly  obli- 
gator}^ upon  them.  Yet  if  there  be  fraud,  circumvention,  or 
undue  advantage  taken  of  the  infant's  age  or  situation  by 
the  public  agents,  the  contract  could  not,  in  reason  or  justice, 
be  enforced.^  And  contracts  of  enlistment  are  not  b}'  our 
statutes  usually  made  binding  upon  any  infants  under  a  pre- 
scribed age.^ 

On  like  principles,  a  minor  may  be  bound  by  his  indentures 
of  aiDprenticeship,  executed  in  strict  conformity  to  statute  ; 
this  being  likewise  deemed  for  his  benefit.  By  the  custom  of 
London,  and  under  the  laws  of  some  States,  the  covenants  of 
the  minor  apprentice  are  obligatory  upon  him.  But  it  is 
otherwise  by  the  common  law  of  England,  and  also  under 
the  statutes  of  Elizabeth,  and  in  New  York,  Massachusetts, 
and  other  States.  Still,  although  the  infant  is  not  liable  for 
breach  of  his  covenants,  he  cannot  dissolve  the  indenture.^ 
The  English  doctrine  is  that  indentures  are  so  far  binding, 
that  the  master  may  enforce  his  rights  under  them ;  and 

*  561    the  legal  incidents  of  service  *  as  apprentice  attach  to 

this  relation  ;  unless  the  master  by  his  own  misconduct 
deprives  the  infant  of  the  benefits  of  the  contract,  in  which 
case  the  law  will  release  the  latter  from  his  bargain.^ 

In  this  country,  the  cases  are  very  common  where  a  minor 
is  said  to  be  emancipated  and  entitled  to  contract  for  and 
receive  his  own  wages.  But  the  significance  of  the  word 
"  emancipation  "  is  not  exact ;  and,  certainly,  the  legal  obliga- 
tion of  the  infant's  contract  for  work  is  by  no  means  com- 
mensurate with  his  right  to  the  fruits  of  his  own  toil.  His 
legal  capacity  to  do  acts  necessarily  binding  does  not  seem  to 
be  enlarged  by  the  circumstance  that  his  father  has  given  him 
his  time ;  and  the  general  rule,  independently  of  the  appren- 

1  United  States  v.  Bainbriclge.     And  see  Franklin  v.  Mooney,  2  Tex.  452. 

2  Matter  of  Tarble,  25  Wis.  390  ;  In  re  McDonald,  1  Low.  100. 

3  Met.  Contr.  66.  But  in  some  States  he  can.  See  Woodruff  v.  Logan,  1 
Eng.  276  ;  Stokes  v.  Hatcher,  1  South.  84  ;  M'Dowles'  Case,  8  Johns.  331  ; 
Blunt  V.  Melcher,  2  Mass.  228  ;  Rex  v.  Inhabitants  of  Wigston,  3  B.  &  C.  484 ; 
Clark  V.  Goddard,  39  Ala.  164  ;  infra,  p.  605,  and  n. 

4  5  Dowl.  &  Ry.  339;  6  T.  R.  558;  Cro.  Jac.  494;  Cro.  Car.  179;  Met. 
Contr.  66  ;  Rex  v.  Mountsorrel,  3  M.  &  S.  497. 

[  598  ] 


ACTS  BINDING  UPON  THE  INFANT.       *  561 

tice  acts,  is  that  an  infant  who  contracts  to  perform  labor  for 
a  fixed  time  at  a  definite  rate,  may  put  an  end  to  it  whenever 
he  chooses,  and  claim  compensation  pro  rata  for  his  ser- 
vices.^ Infants,  acting  upon  bad  advice,  have  sometimes  the 
effrontery,  after  rescinding  a  contract  beneficial  to  them- 
selves, to  demand  wages  from  their  employers,  without  the 
allowance  of  reasonable  offsets;  but  the  courts  are  not  so 
foolish  as  to  indulge  them  often  in  this  respect;  hence,  in 
numerous  instances,  it  is  decided  that  where  an  infant  puts 
an  end  to  his  contract  of  service,  his  demand  for  proportional 
wages  is  subject  to  the  reasonable  deduction  of  his  employer 
for  part-payments,  board,  and  necessaries  furnished  him  dur- 
ing the  same  period,  even  to  the  entire  extinction  of  his  own 
claim.2  And  the  injury  sustained  by  his  employer  will 
be  not  unfrequently  *  taken  into  account.^  But  the  *  562 
infant  cannot  be  sued  for  breach  of  his  agreement  of 
service.*  Of  course  he  may  set  off  his  own  labor  against  the 
employer's  demand  for  necessaries.^  And  the  mutual  under- 
standing of  the  parties  as  to  whether  the  infant's  services 
should  be  paid  for  or  counterbalanced  completely  by  his 
board  and  education,  should  be  regarded  in  every  case,  upon 
examination  of  the  circumstances.*^ 

A  case  occurred  in  Massachusetts  a  few  years  ago,  where 
an  infant,  in  consideration  of  an  outfit  to  enable  him  to  go  to 
California,  agreed,  with  his  father's  assent,  to  give  the  party 

1  Person  v.  Chase,  37  Vt.  647  ;  Van  Pelt  v.  Corwine,  6  Ind.  363 ;  Ray  v. 
Haines,  52  III.  485 ;  Davies  v.  Turton,  13  Wis.  185  ;  Moses  v.  Stevens,  2  Pick. 
332 ;  Mason  v.  Wright,  13  Met.  306 ;  Lufkin  v.  Mayall,  5  Fost.  82  ;  Francis  v. 
Felmet,  4  Dev.  &  Bat.  498;  Judkins  v.  Walker,  17  Me.  38;  Nashville,  &c.,  K.  \\. 
Co.  V.  Elliott,  1  Cold.  611.  But  see  Weeks  t'.  Leighton,  5  N.  H.  343 ;  Harney  v. 
Owen,  4  Blackf.  336;  Wilholm  v.  Hardman,  13  Md.  140;  M'Coy  i-.  Iluflfman, 
8  Cow.  84  ;  Medbury  v.  Watrous,  7  Hill,  110.  As  to  the  more  general  effect  of 
emancipation,  see  supra,  pp.  367-371. 

2  Thomas  v.  Dike,  11  Vt.  273;  Ho.xie  v.  Lincoln,  25  Vt.  206;  Lowe  v.  Sin- 
klear,  27  Mis.  308 ;  Stone  v.  Dennison,  13  Pick.  1  ;  Squier  v.  Hydliff,  9  Mich. 
274;  Wilhelm  v.  Hardman,  13  Md.  140;  Roundy  v.  Thatcher,  49  N.  H.  526. 

3  Thomas  v.  Dike,  11  Vt.  273  ;  Hoxie  v.  Lincoln,  25  Vt.  206  ;  Lowe  v.  Sin- 
klear,  27  Mis.  308 ;  Moses  v.  Stevens,  2  Pick.  336.  Contra,  Meeker  v.  Hurd,  31 
Vt.  639;  Derocher  v.  Continental  Mills,  58  Me.  217. 

*  Frazier  v.  Rowan,  2  Brev.  47. 

5  Francis  i;.  Felmet,  4  Dev.  &  Bat.  498. 

t>  Mountain  i?.  Fisher,  22  Wis.  93  ;  Garner  v.  Board,  27  Ind.  323. 

[599] 


*  562  INFANCY. 

furnishing  the  outfit  one-third  of  all  the  avails  of  his  labor 
during  his  absence,  which  he  afterwards  sent  accordingly. 
The  jury  having  found  that  the  agreement  was  fairly  made, 
and  for  a  reasonable  consideration,  and  beneficial  to  the  infant, 
it  was  held  that  he  could  not  rescind  the  agreement  and  recover 
the  amount  sent,  deducting  the  cost  of  the  outfit  and  any 
other  money  expended  for  him  under  the  agreement.^  This 
offer,  the  court  observed,  would  not  place  the  parties  in  static 
quo,  for  the  defendants  took  the  risk  of  the  hfe,  health,  and 
good  fortune  of  the  plaintiff.  Under  all  the  circumstances  of 
the  case,  the  sum  advanced  was  held  to  be  a  reasonable  con- 
sideration for  a  third  part  of  the  proceeds  of  the  plaintiff's 
labor. 

It  is  a  well-known  principle  that  when  a  contract  is  dis- 
solved by  mutual  consent,  pro  rata  wages  may  be  recovered 
without  express  agreement.  This  applies  to  infants  as  well 
as  adults.  But  a  father  is  so  far  bound  by  his  son's  contract 
that  his  own  claim  for  compensation  depends  upon  his  son's 
proper  performance.^  The  employer,  on  the  other  hand, 
cannot  make  a  new  contract  with  the  minor,  so  as  to  super- 
sede the  first  one,  without  the  assent  of  the  father,  or  other 
person  with  whom  the  original  contract  was  made.^  But  it  is 
held  that  a  contract  of  hiring  between  an  infant  and  a  third 
person  is  not  rendered  inoperative  on  the  infant's  part  merely 
for  want  of  the  parent's  previous  consent;  the  infant  not 
having  avoided  the  contract,  and  the  parent  making  no  effort 
to  assert  his  paramount  rights.* 

1  Breed  v.  Judd,  1  Gray,  455. 

2  Rogers  i'.  Steele,  24  Vt.  513.  See  Thomas  v.  Williams,  1  Ad.  &  E.  685; 
Roundy  v.  Thatcher,  49  N.  H.  526. 

3  McDonald  v.  Montague,  30  Vt.  357.  And  see  Gates  v.  Davenport,  29  Barb. 
160.     See  also  Parent  and  Child,  supra. 

4  Nashville,  &e.,  R.  R.  Co.  v.  Elliott,  1  Cold.  64. 


[600] 


THE   INJURIES   AND   FRAUDS   OF   INFANTS.         *  5G3 


*  CHAPTER    IV.  *563 

THE   INJURIES    AND    FRAUDS    OF   INFANTS. 

In  this  chapter  we  shall  treat,  firsts  of  injuries  and  frauds 
committed  by  an  infant ;  secondly,  of  injuries  and  frauds 
suffered  by  an  infant. 

First,  as  to  injuries  and  frauds  committed  by  an  infant.  It 
is  a  general  principle  that  infancy  shall  not  be  jDermitted  to 
protect  wrongful  acts.  To  use  the  forcible  expression  of  Lord 
Mansfield,  the  privilege  of  infancy  is  given  as  a  shield  and  not 
a  sword. 1  And  minors  are  liable,  not  only  for  their  criminal 
acts,  but  for  their  torts  ;  and  must  respond  in  damages  in  all 
cases  arising  ex  delicto  to  the  extent  of  their  pecuniary  means, 
irrespective  of  the  form  of  action  which  the  law  prescribes 
for  redress  of  the  wrong.^ 

An  infant  is  then  as  fully  liable  as  an  adult  in  an  action  for 
damages  occasioned  by  injury  to  the  person  or  property  of 
another  by  his  wrongful  act.^  True,  it  has  been  observed, 
that  where  infants  are  the  actors,  that  might  probably  be  con- 
sidered an  unavoidable  accident,  which  would  not  be  so  where 
the  actors  are  adults.*  But,  says  a  writer,  where  the  minor  com- 
mits a  tort  with  force,  he  is  liable  at  any  age  ;  for  in  case  of 
civil  injuries  with  force,  the  intention  is  not  regarded.^ 

*  It  follows  from  what  we  have  said,  that  for  an  in-  *  5G4 
jury  occasioned  by  an  infant's  negligence,  he  may  be 

held  civilly  answerable.     As  where,  in  sport,  he  discharges  an 

1  Zouch  V.  Parsons,  3  Burr.  1802. 

2  Met.  Contr.  49  ;  1  Adilis.  Torts,  731  ;  8  T.  R.  335  ;  2  Kent  Com.  240,  211  ; 
School  District  v.  Bragdon,  3  Fost.  507 ;  Bullock  v.  Babcock,  3  Wend.  391 ; 
Oliver  v.  McClellan,  21  Ala.  675. 

8  Conklin  v.  Thompson,  20  Barb.  218. 

*  Bullock  V.  Babcock,  3  Wend.  391. 

5  Reeve  Dom.  Rel.  258.     See  Neal  i-.  Gillett,  23  Conn.  437. 

[  '>oi  ] 


*  564  INFANCY. 

arrow  in  a  school-room  where  there  are  a  number  of  boys 
assembled,  and  thereby  disables  another.^  And  even  though 
under  seven  years  of  age,  a  child  has  been  held  liable  in 
trespass  for  breaking  down  the  shrubbery  and  flowers  of  a 
neighbor's  garden.^  But  not  for  turning  horses  which  Avere 
trespassing  on  his  father's  land  into  the  highway,  for  this  does 
not  constitute  a  tort.^  All  the  cases  agree  that  trespass  lies 
against  an  infant.  And  minors  are  chargeable  in  trespass  for 
having  procured  others  to  commit  assault  and  battery.'* 

But,  supposing  the  trespass  to  have  been  committed  by  the 
express  command  of  the  father  ;  is  the  infant  then  liable  ?  So 
it  was  thought  in  a  Vermont  case,  where  the  decision  never- 
theless rested  on  a  diiferent  ground.^  "  An  infant,  acting 
under  the  command  of  his  father,' as  a  wife  in  the  presence  of 
her  husband,  might  be  excused  from  a  prosecution  for  crime, 
if  it  should  appear  that  the  intent  was  wanting,  or  that  he 
was  acting  under  constraint ;  yet  he  is  answerable  civlUter  for 
injuries  he  does  to  another."^  And  more  recently  this  ques- 
tion is  plainly  decided  in  Maine,  in  the  affirmative.'''  On  the 
other  hand,  it  would  appear  that  an  infant  cannot  be  held 
responsible  for  torts  committed  by  persons  assuming  to  act 
under  his  implied  authority  ;  in  other  words,  that  his  liability 
is  not  to  be  extended  in  any  case  beyond  acts  committed  by 
himself  or  under  his  immediate  and  express  direction.^ 

An  infant  in  the  actual  occupation  of  land  is  responsible  for 
nuisances  and  injuries  to  his  neighbor,  arising  from  the  negli- 
gent use  and  management  of  the  property.^  And  ejectment 
may  be  maintained  against  an  infant  for  disseisin,  that  being 
a  tort. 

The  cases  on  the  subject  of  an  infant's  torts  do  not  seem 
quite  consistent,  so  far  as  decisions  upon  the  facts  are  con- 

1  Bullock  V.  Babcock,  3  Wend.  391.  ^  Huchting  v.  Engel,  17  Wis.  231. 

3  Humphrey  v.  Douglass,  10  Vt.  71. 

*  Sikes  V.  Johnson,  16  Mass.  389  ;  Tift  v.  Tift,  4  Denio,  177  ;  Scott  v.  Watson, 
46  Me.  362. 

5  Humphrey  v.  Douglass,  10  Vt.  71.  6  pgr  Williams,  C.  J.,  ib. 

7  Scott  V.  Watson,  46  Me.  362. 

^  Robbins  v.  Mount,  4  Rob.  (N.  Y.)  553;  Burnham  v.  Seaverns,  101  Mass. 
360. 

9  1  Addis.  Torts,  731 ;  McCoon  v.  Smith,  3  Hill,  147. 

[  602] 


THE  INJURIES   AND   FRAUDS    OF   INFANTS.  *  56-4 

cerned  ;  but  the  principle  whicli  runs  through  tliem  all  serves 
to  harmonize  the  apparent  contradictions.  This  is  the 
principle :  that  the  *  courts  will  hold  an  infant  liable  *  060 
for  what  are  substantially  his  torts,  but  not  for  mere 
violations  of  a  contract,  though  attended  with  tortious 
results,  and  though  the  party  ordinarily  has  the  right  to 
declare  in  tort  or  contract  at  his  election.  It  must  be  remem- 
bered that,' for  his  contracts,  the  infant  is  not  ordinarily  lia- 
ble: for  his  torts  he  is.  And  this  distinction  is  at  the  root 
of  the  legal  difficulty.  The  plaintiff  cannot  convert  any 
thing  that  arises  out  of  a  contract  into  a  tort  and  then  seek 
to  enforce  the  contract  through  an  action  of  tort.  Therefore 
was  it  held  that  where  a  boy  hired  a  horse  and  injured  it  by 
immoderate  driving,  this  was  only  a  breach  of  contract  for 
which  he  was  not  liable.^  Nor  was  he  liable  for  breaking  a 
borrowed,  carriage.^  And  where  in  an  exchange  of  horses 
the  infant  had  falsely  and  fraudulently  warranted  his  mare  to 
be  sound,  he  was  protected  from  the  consequences  on  the 
same  principle.^ 

The  English  cases,  decided  many  years  ago,  exhibit  a  strong 
disposition  to  apply  this  rule  in  favor  of  an  infant's  exemption. 
And  the  language  of  the  court  in  3Ianhy  v.  Saott^  with  refer- 
ence to  the  delivery  of  goods  to  an  infant,  and  suit  afterwards 
for  trover  and  conversion,  was  that  the  latter  shall  not  be 
chargeable  :  "  for  by  that  means  all  infants  in  England  would 
be  ruined."  ^  Says  a  judge,  deciding  a  case  on  the  same 
general  principle,  "  the  judgment  will  stay  for  ever,  else  the 
whole  foundation  of  the  common  law  will  be  shaken."  ^  But 
a  more  equitable  principle  pervades  the  later  cases.  Thus  in 
an  English  case,  where  one  twenty  years  old  hired  a  horse  for 
a  ride,  and  was  told  plainly  that  it  was  not  let  for  jumping, 
and  notwithstanding  caused  the  horse  to  jump  a  fence  and 
killed  the  animal,  he  was  held  liable  for  the  wrong.^     And  in 


1  Jennings  v.  Randall,  8  T.  R.  335.  2  Schenck  v.  Strong,  1  South.  87. 

'  Green  v.  Greenbank,  2  Marsh.  485;  Ilowlett  i'.  Haswell,  4  Campb.  118  ; 
Morrill  v.  Aden,  19  Vt.  505. 

*  1  Sid.  129,  quoted  witli  approbation  in  Jennings  v.  Rundali,  supra. 

*  Johnson  v.  Pye,  1  Keb.  905.     See  n.  to  Ilowlett  v.  Haswell,  supra. 
'^  Burnard  v.  Haggis,  14  C.  B.  n.  s.  45. 

[603  ] 


*  565  INFANCY. 

Vermont  an  infant  was  held  answerable,  not  many  years  ago, 
where  he  hired  a  horse  to  go  to  a  certain  place  and  return  the 
same  day,  then  doubled  the  distance  by  a  circuitous  route, 
stopped  at  a  house  on  the  Avay,  left  the  horse  all  night  without 
food  or  shelter,  and  by  such  overdriving  and  exposure  caused 
the  death  of  the  horse.i     This  is  the  Massachusetts 

*  566    doctrine  *  likewise.^   The  New  Hampshire  rule  is  that 

the  infant  bailee  of  a  horse  is  liable  for  positive  tortious 
acts  wilfully  committed,  whereby  the  horse  is  injured  or  killed  : 
though  not  for  mere  breach  of  contract,  as  a  failure  to  drive 
skilfully .3  The  distinction  to  be  relied  upon  is,  that  when 
property  is  bailed  to  an  infant,  his  infancy  protects  him  so 
long  as  he  keeps  within  the  terms  of  the  bailment  ;  but  when 
he  goes  beyond  it,  there  is  a  conversion  of  the  property,  and 
he  is  liable  just  as  much  as  though  the  original  taking  was 
tortious.* 

Chief  Justice  Marshall  pronounces  infancy  to  be  no  com- 
plete bar  to  an  action  of  trover,  although  the  goods  converted 
be  in  the  infant's  possession,  in  virtue  of  a  previous  contract. 
"  The  conversion  is  still  in  its  nature  a  tort;  it  is  not  an  act  of 
omission  but  of  commission,  and  is  within  that  class  of  offences 
for  which  infancy  cannot  afford  protection."  ^  This  doctrine 
is  approved  in  New  York.*^  And  in  Maine.'  So,  in  England, 
detinue  will  lie  against  an  infant,  where  goods  were  delivered 
for  a  special  purpose  not  accomxjlished.^  And  the  general  rule 
seems  to  be  now  well  established  that  an  infant  is  liable  for 
goods  intrusted  to  his  care,  and  unlawfully  converted  by  him  ; 
though  as  to  what  would  constitute  such  conversion,  the 
authorities  are  not  agreed.^  Thus  it  is  held  that  while  a 
ship-owner  cannot  sue  his  infant  supercargo  for  breach  of 
instructions  he  may  bring  trover  for  the  goods.^*^     And  an 

1  Towne  i'.  Wiley,  23  Vt.  355.  •  Homer  v.  Tliwing,  8  Pick.  492. 

3  Eaton  V.  Hill,  50  N.  H.  235. 

*  Towne  v.  Wiley,  supra,  per  Redfield,  J.  The  rule  is  otherwise  in  Pennsyl- 
vania.    Penrose  v.  Curren,  3  Rawle,  351. 

5  Vasse  V.  Smith,  6  Cranch,  22G. 

6  Campbell  v.  Stakes,  2  Wend.  137.  ''  Lewis  v.  Littlefield,  15  Me.  233. 

8  Mills  ('.  Graham,  4  B.  &  P.  140. 

9  See  Story  Bailments,  §  50  ;  2  Kent  Com.  241 ;  Baxter  v.  Bush,  29  Vt.  465. 
w  Vasse  v.  Smith,  6  Cranch,  226. 

[604] 


THE   INJURIES   AND   FRAUDS    OF   INFANTS.  *  566 

infant,  prevailing  on  the  plea  of  infancy  in  an  action  on  a 
promissory  note  given  by  him  for  a  chattel  which  he  had 
obtained  by  fraud  and  refused  to  deliver  on  demand,  has  still 
been  rendered  liable  to  an  action  of  tort  for  the  conversion  of 
the  chattel :  the  original  tort  not  having  Ijeen  superseded  by 
a  completed  contract.^  Replevin  would  lie  for  the  goods  even 
where  a  suit  for  damages  might  fail.^  For  stolen  money  and 
stolen  goods  converted  into  money,  an  infant  is  held 
liable  in  assumpsit,'^  Yet  his  *  conversion  of  specific  *  507 
goods  should  be  carefully  distinguished  from  what  is 
in  substance  a  breach  of  his  contract  to  sell  and  account  for 
profits.* 

Where  an  action  for  money  had  and  received  was  l^rought 
against  an  infant  to  recover  money  which  he  had  embezzled, 
Lord  Kenyon  said  that  infancy  was  no  defence  to  the  action ; 
that  infants  were  liable  to  actions  ex  delicto  though  not  ez 
contractu^ 'dnd  though  the  action  was  in  form  an  action  of  the 
latter  description,  yet  it  was  in  jjoint  of  substance  ex  delicto.^ 
For  embezzlement  of  funds,  therefore,  an  infant  may  be  con- 
sidered liable.^  And  in  New  York,  and  some  other  States,  an 
infant  is  held  responsible  in  tort  for  obtaining  goods  on  credit, 
intending  not  to  pay."  In  New  Hampshire,  the  general  rule 
is  stated  to  be,  that  if  false  representations  are  made  by  an 
infant  at  the  time  of  his  contract,  he  may  set  up  infancy  in 
defence  ;  but  that  if  the  tort  is  subsequent  to  the  contract, 
and  not  a  mere  breach  of  it,  but  a  distinct,  wilful,  and  posi- 
tive wrong  of  itself;  then,  although  it  maybe  connected  with 
a  contract,  the  infant  is  liable.^ 

The  plea  of  infancy  has  long  been  considered,  both  in  Eng- 
land and  this  country,  a  good  defence  to  an  action  for  fraud- 
ulent representation  and  deceit.     Thus,  the  rule  is,  that  an 

1  Walker  v.  Davis,  1  Gray,  506.     And  see  Fitts  v.  Hall,  9  N.  H.  441. 

2  Badger  v.  Pliinney,  15  Mass.  359. 

3  Shaw  V.  Coffin,  58  Me.  254  ;  Elwell  v.  Martin,  32  Vt.  217. 

*  See  Munger  i;.  Hess,  28  Barb.  75.     And  see  Burns  v.  Hill,  19  Geo.  22. 
6  Bristow  V.  Eastman,  1  Esp.  172.  «  Elwell  v.  Martin,  32  Vt.  217. 

1  Wallace  v.  Morse,  5  Hill,  391,  and  cases  cited.  But  the  rule  appears  other- 
wise in  Indiana.     Root  v.  Stevenson's  Adin'r,  24  Ind.  115 

8  Fitts  V.  Hall,  9  N.  H.  441 ;  Prescott  v.  Norris,  32  N.  H.  101. 

[605  ] 


*  567  INFANCY. 

infant  who  falsely  affirms  goods  to  be  his  own,  and  that  he 
had  a  right  to  sell  them,  and  thereby  induces  the  plaintiff  to 
purchase  them,  is  not  responsible.^  For  the  plea  of  infancy, 
as  it  is  sometimes  said,  will  prevail  when  the  gravamen  of  the 
fraud  consists  in  a  transaction  which  really  originated  in  con- 
tract.2  Still  more  frequently  has  it  been  held  that  for  a  false 
and  fraudulent  representation  that  he  was  of  full  age, 

*  568    there  is  no  remedy  against  the  infant ;  whether  *  money 

were  advanced  or  goods  intrusted  to  him  on  the 
strength  of  such  representation."^  The  reader  must  reconcile 
the  sense  of  these  rules  with  some  of  the  foregoing  cases  as 
best  he  may.  If  any  thing  be  needed  to  show  the  inadequacy 
of  common-law  remedies  for  frauds  and  wilful  misrepresen- 
tations, it  is  just  such  maxims  as  these,  which  have  been 
perpetuated  from  the  old  books. 

Chancery,  handling  its  weapons  with  more  freedom,  is 
accomplishing  results  in  this  respect  more  wid^y  useful. 
The  doctrine  of  the  English  equity  courts  appears  to  have 
been,  for  years,  that  where  payment  is  made  to  one  falsely 
representing  himself  as  an  infant,  this  is  a  discharge  for  the 
sum  paid  ;  but  that  where  there  was  no  such  misrepresen- 
tation the  trustee  still  remains  liable  ;  the  mere  belief  that 
one  was  of  age,  of  course,  affording  no  ground  of  justification.'^ 
An  English  bankruptcy  case  of  recent  date  carries  the  princi- 
ple still  farther  ;  far  enough  to  startle  those  who  have  reposed 
upon  the  assurance  that  the  ancient  judgments  "  will  stay  for 
ever."  A  young  man,  who  from  his  appearance  might  well 
have  been  taken  to  be  more  than  twenty-one  years  of  age, 
encraffed  in  trade,  and  wished  to  borrow  or  to  obtain  credit, 
and  for  the  purpose  of  doing  so  represented  himself  to  the 
petitioner  as  of  the  age  of  twenty-two,  expressly  and  dis- 
tinctly.    It   was  held    that,  whatever    the    liability    or    non- 

1  Grove  v.  Nevill,  1  Keb.  778  ;  1  Addis.  Torts,  GGl ;  Prescott  v.  Norris,  32  N. 
H.  101  ;  Morrill  v.  Aden,  29  Vt.  -105.  But  see  Word  r.  Vance,  1  Nott  &  M'Cord, 
197. 

•■!  Gilson  V.  Spear,  S8  Vt.  311. 

3  Johnson  v.  Pye,  1  Sid.  258  ;  Price  v.  Hewett,  8  Exch.  146 ;  s.  c.  18  E.  L. 
&Eq.  522;  Burley  v.  Russell,  10  N.  H.  184;  Conroc  v.  Birdsall,  1  Jolins.  Cas. 
127  ;  Merriam  v.  Cunningliam,  11  Ciisli.  40 ;  Brown  v.  McCune,  5  Sandf.  224. 

*  Overton  v.  Banister,  3  Hare,  503;  Stikenian  v.  Dawson,  1  De  G.  &  S.  90. 

[60G] 


THE    INJURIES   AND   FRAUDS   OF   INFANTS.  *  568 

liahility  of  the  infant  at  law,  he  had  made  himself  liable  in 
eqnit}'  to  pay  that  debt.^ 

But  in  a  somewhat  later  case,  not  inconsistent  with  these 
others,  it  was  held  that  an  infant's  settlement  upon  his  wife 
might  be  avoided  by  him  on  arriving  at  majority,  notwith- 
standing there  was  some  evidence  that  he  fraudulently  mis- 
stated his  age  to  her  solicitor ;  the  fact  being,  however, 
that  she,  a  widow  of  thirty-two,  knew  perfectly  well 
*  that  he  was  under  age,  and  was  not  misled  by  his  *  569 
representation. 2  Lord  Justice  Turner,  commenting 
upon  the  case,  said :  "  There  can  be  no  doubt  that  it  is 
morally  wrong  in  an  infant  of  competent  age,  as  it  is  in  any 
other  person,  to  make  any  false  representation  whatever ;  but 
the  observance  of  obligations  or  duties  which  rest  only  upon 
moral  grounds  cannot  be  enforced  in  chancery.  Some  wrong 
or  injury  to  the  jjarty  complaining  must  be  shown."  He 
further  observes  :  "  The  privilege  of  infancy  is  a  legal  privi- 
lege. On  the  one  hand,  it  cannot  be  used  by  infants  for  the 
purposes  of  fraud.  On  the  other  hand,  it  cannot,  I  think,  be 
allowed  to  be  infringed  upon  by  persons  who,  knowing  of  the 
infancy,  must  be  taken  also  to  know  of  the  legal  consequences 
which  attach  to  it.''^ 

The  result  of  these  late  English  decisions  is  to  reopen  in 
that  country  the  Avhole  subject  of  an  infant's  liability  on  his 
fraudulent  misrepresentations ;  and  considerable  uncertainty 
appears  to  pervade  the  latest  common-law  decisions  in  that 
country,  which  incidentally  heav  upon  the  subject.*  Whether 
the  new  or  the  old  doctrine  is  in  the  end  to  prevail,  it  is  too 
early  yet  to  say  ;  but  a  collision  has  come,  towards  which 
equity  and  the  common  law  were  fast  tending.^ 

The  civil-law  doctrine  is  clearly  that  if  a  minor  represents 
himself  of  age,  (md  from  his  person  he  apijears  to  be  so,  any 
contract  made  with  him  will  be  valid  ;  and  the  law  protects 

1  Unity  and  Banking  Association,  In  re,  3  De  G.  &  J.  63  (1858).  Lords  Jus- 
tices Bruce  and  Turner  concurred  in  this  opinion,  both  expressinj^  some  reluc- 
tance in  giving  tlie  judgment. 

-  Nelson  v.  Stocker,  4  De  G.  &  J.  458  (1859). 

!*  lb.  p.  465.     See  Innian  v.  Inman,  L.  R.  15  Eq.  260. 

<  See  De  Roo  v.  Foster,  12  C.  B.  n.  s.  272  (1862);  Wright  v.  Leonard,  11 
C.  B.  N.  s.  258. 

[007  J 


*  569  INFANCY. 

those  who  are  defrauded,  not  those  who  commit  fraud. ^    And 
such  was  the  Spanish  law  as  formerly  prevalent  in  our  South- 
western States.^    In  a  Maryland  case,  too,  we  find  the  sugges- 
tion that  if  an  infant  forms  a  partnership  Avith  an  adult 

*  570    he  holds  himself  *  out  fraudulently  to  the  world.'^     In 

Texas,  the  fraudulent  representations  of  an  infant  are 
binding  upon  him.^  Intimations  are  sometimes  found  in  the 
courts  as  to  gross  frauds  which  might  bind  an  infant.^  And 
in  Kentucky,  not  long  since,  the  court  refused  to  alloAV  a  deed 
made  by  a  wife  and  her  husband  to  be  avoided  on  the  ground 
of  the  wife's  infancy,  when,  to  induce  the  innocent  purchaser 
to  take  the  land,  she  and  her  husband  had  made  oath  before 
a  magistrate  that  to  the  best  of  their  knowledge  and  informa- 
tion she  was  more  than  twenty-one  years.  This  was  a  right- 
eous decision.^  Beyond  this  there  seems  no  special  authority 
for  asserting  that  the  American  doctrine  on  this  subject  is 
unsettled,  or  that  it  is  likely  to  feel  the  change  now  going  on 
in  the  English  courts.  In  fact,  an  equity  court  in  North 
Carolina  refused,  not  many  years  since,  to  compel  specific 
performance  of  an  infant's  contract  on  the  alleged  ground  of 
fraudulent  misrepresentation  of  his  father  and  himself,  that 
he  was  of  full  age;  following  the  old  common-law  rule  instead 
of  opposing  it.' 

But  our  American  statutes  sometimes  quicken  the  infant's 
sense  of  honor.  Thus,  in  Iowa,  it  is  enacted  that  one  who, 
in  selling  real  estate,  represents  himself  to  be  of  full  age,  and 
induces  the  grantee  to  buy  on  the  strength  of  that  representa- 

1  1  Dom.  pt.  1,  b.  4,  tit.  6,  §  2. 

-  See  able  discussion  of  this  subject  by  Hemphill,  C.  J.,  Kilgore  v.  Jordan, 
17  Tex.  341.  There  is  not  another  American  case  to  be  found  where  this  sub- 
ject is  so  fully  discussed,  in  its  civil  law,  common  law,  and  English  equity  bear- 
ings. 

^  Kemp  V.  Cook,  18  Md.  130.  The  remark  is  quoted  as  that  of  Lord  Mans- 
field, in  Gibbs  v.  Merrill,  3  Taunt.  307,  but  this  must  be  an  error,  as  no  such 
language  appears  in  the  case  referred  to,  while  the  decision  went  upon  a  totally 
different  ground. 

^  Kilgore  v.  Jordan,  17  Tex.  341. 

5  Stoolfos  V.  Jenkins,  12  S.  &  R.  399  ;  2  Kent  Com.  241.  And  see  Sterling  v. 
Adams,  3  Day,  411 ;  Davies,  J.,  in  Henry  v.  Root,  23  N.  Y.  544. 

^  Schmitheimer  v.  Eiseman,  7  Bush,  298. 

■J  Dibble  V.  Jones,  5  Jones  Eq.  389. 
[608] 


THE  INJURIES  AND  FRAUDS  OF  INFANTS.    *  570 

tion  cannot  afterwards  disaffirm  his  contract  on  the  ground  of 
infancy.'  It  would  be  well  if  similar  statutes  were  enacted 
in  every  State. 

Secondly.  As  to  injuries  and  frauds  suffered  by  infants. 
Infants  have  a  right  to  sue,  by  guardian  or  next  friend,  to 
recover  damages  for  injuries  done  to  person  or  property  by 
the  tortious  acts  of  another ;  and  the  ordinar}'  principles  of 
law,  in  this  respect,  apply  to  them  as  to  adults.^  But  by 
reason  of  their  tender  years,  their  rights  and  remedies  receive 
a  somewhat  peculiar  treatment  in  the  courts,  as  we  proceed  to 
show. 

Thus  it  is  held  that  a  child  eight  years  old  may  sue  one  who 
sells  and  delivers  to  him  a  dangerously  explosive  substance, 
such  as  gunpowder,  though  upon  his  own  request.^ 
Such  *  actions  are  grounded  upon  the  ignorance  of  the  *  571 
child  and  the  negligence  of  those  who  fail  to  regard  it. 
The  principle  involved  is  precisely  that  of  the  case  where  a 
man  delivers  a  cup  of  poison  to  an  idiot  or  puts  a  razor  into 
the  hand  of  an  infant.  The  child  uses  that  ordinary  care  of 
which  he  is  presumed  capable  ;  and  though  this  may  amount, 
logically,  to  actual  carelessness  as  applied  among  adults  to  the 
ordinary  transactions  of  life,  his  right  of  action  is  not  thereby 
forfeited.  Whoever,  then,  would  avoid  a  suit  like  this,  must 
regulate  his  own  discretion  to  suit  the  party  with  whom  he 
deals,  and  act  at  all  times  with  befitting  prudence. 

But  there  are  cases  Avhere  the  child  himself  may  have  no 
right  of  action  for  injuries  received.  As  if  he  be  technically 
a  trespasser,  and  meddling  with  property  which  does  not 
belong  to  him.  Of  this  rule  a  recent  English  case  affords  an 
example,  where  a  boy,  four  years  old,  coming  from  school, 
saw  a  machine  exposed  for  sale  in  a  public  place,  and  by 
direction  of  his  brother,  seven  years  old,  placed  his  fingers 
within  the  machine  whilst  another  turned  the  crank  and 
thereby  crushed  his  fingers.*     The  court  held  that  no  action 

1  Proutz  V.  Edgar,  6  Iowa,  353.  2  1  Addis.  Torts,  712. 

3  Carter  v.  Towne,  98  Mass.  567. 

*  Mangan  v.  Atterton.  L.  R.  1  Ex.  239.  And  see  Hughes  v.  McFie,  2  II.  & 
C.  744;  33  L.J.  (Ex.)  177. 

39  [  609  ] 


*  571  INFANCY. 

^vould  lie.  But  if  the  trespass  of  the  infant  does  not  sub- 
stantially contribute  to  produce  the  injury,  it  would  appear 
that  no  defence  can  be  legally  interposed  on  this  ground.^ 
Thus,  the  mere  fact  that  a  youth  gets  upon  a  railroad  car 
intending  to  ride  without  paying  fare  is  held  not  to  bring  the 
case  within  the  rule  of  contributory  negligence.^ 

Another  and  the  more  common  class  of  exceptions  consists 
of  cases  where  the  parents  or  other  persons  having  charge  of 
the  child  have  been  guilty  of  negligence."  The  rule  of  New 
York,  Massachusetts,  Illinois,  and  some  other  States,  is  that 
a  child  too  young  to  have  discretion  for  himself  cannot  re- 
cover if  his  protector  fails  to  exercise  ordinary  care,  but  that 
he  may  if  he  uses  such  care  as  is  usual  with  children  of  the 
same  age,  and  the  protector  exercises  ordinary  care 

*  572    besides.^     The  English  rule,  as  formerly  *  understood, 

does  not  take  into  consideration  the  circumstance  of 
the  protector's  negligence  at  all.*  And  in  Vermont,  Con- 
necticut, Ohio,  and  Pennsylvania,  the  child's  exercise  of 
ordinary  care  appears  alone  to  be  regarded.^  The  latest 
English  cases,  however,  lean  toAvard  the  doctrine  first  above 
stated.  Thus  when  the  child,  at  the  time  of  injury,  was  in 
the  care  of  Ms  grandmother,  at  a  railroad  station,  where  she 
had  purchased  tickets  for  both,  it  was  held  that  the  plaintiff 
was  so  identified  with  his  grandmother  that,  by  reason  of  her 
negligence,  no  suit  was  maintainable  against  the  company.^ 

To  take  common  illustrations  of  this  doctrine.  Allowing 
a  child  seventeen  months  old  to  be  in  the  public  street  with- 

1  See  Daley  v.  Norwich  &  Worcester  R.  E.  Co.,  26  Conn.  591. 

2  Kline  v.  Central  Pacific  R.  R.  Co.,  37  Cal.  400. 

3  Wright  V.  Maiden  &  Melrose  R.  R.  Co.,  i  Allen,  283 ;  Hartfield  v.  Roper, 
21  Wend.  617  ;  Downs  v.  New  York  Central  R.  R.  Co.,  47  N.  Y.  83 ;  Kerr  v. 
Forgue,  54  111.  482;  Schmidt  v.  Milwaukie,  &c.,  R.  R.  Co.,  23  Wis.  186; 
OTlaherty  v.  Union  R.  R.  Co.,  45  Mis.  70 ;  Baltimore,  &c.,  R.  R.  Co.  v.  State, 
30  Md.  47 ;  Munn  v.  Reed,  4  Allen,  431 ;  Lehman  v.  Brooklyn,  29  Barb.  236 ; 
City  of  Chicago  v.  Starr,  42  111.  174. 

4  Lynch  v.  Nurdin,  1  Q.  B.  29.  Doubted,  however,  in  Lygo  v.  Newbold,  9 
Exch.  302. 

5  Robinson  v.  Cone,  22  Vt.  213 ;  North  Penn.  R.  R.  Co.  v.  Mahoney,  57 
Penn.  St.  187;  Bellefontaine,  &c.,  R.  R.  Co.  v.  Snyder,  18  Ohio  St.  399  ;  Daley 
V.  Norwich  &  Worcester  R.  R.  Co.,  26  Conn.  591.  But  see  Bronson  v.  South- 
bury,  37  Conn.  199. 

«  Waite  V.  North-Eastern  R.  R.  Co.,  5  Jur.  n.  s.  936. 

[610] 


THE   INJURIES   AND   FRAUDS   OF  INFANTS.  *572 

out  a  suitable  attendant  is  held  to  be  a  want  of  ordinary  care 
on  the  parents'  part,  and  if  the  child  be  run  over  there  is  no 
remedy. 1  But  there  are  circumstances  under  which  it  would 
be  found  that  the  parent  or  protector  of  such  a  child  was 
exercising  ordinary  care  ;  while  the  child  himself  would  be 
treated,  doubtless,  as  incapable  of  personal  negligence  at  so 
early  an  age,  so  as  to  defeat  his  right  of  action.^  Suffering 
a  boy  eight  or  ten  years  old  to  play  on  the  street  after  dark  is 
not  necessarily  negligence  on  the  jDrotector's  part.^  And  even 
as  to  children  four  years  of  age  or  thereabouts,  or  perhaps 
younger,  it  is  not  expected  that  parents  who  have  to  labor  for 
themselves  and  cannot  hire  nurses  are  to  be  without  remedy 
for  themselves  or  their  children  every  time  the  child  steps 
into  the  street  unattended.  "What  would  be  expected  of  the 
custodians  of  these  tender  beings  is  a  degree  of  care  or  dili- 
gence suitable  to  the  capacity  of  the  child ;  in  other  words, 
ordinary  care  and  prudence  in  watching  and  controlling  the 
child's  movements.^  As  to  a  child  some  twelve  years  of  age 
travelling  with  his  mother,  and  injured  in  stepping  between 
cars,  the  right  to  sue  is  not  necessarily  defeated  for  the  reason 
that  she  permitted  him  to  go  into  another  car  from  that  where 
she  was  sitting,  and  he  did  so.^  In  fact,  the  circumstances  of 
each  case  are  fairly  to  be  weighed  by  the  jury.  No  child 
capable  of  running  about  can  be  kept  tied  up  in  the  house 
and  subjected  to  constant  watch.  The  rule  is  reasonably 
and  beneficially  applied  ;  and  the  circumstances  are  in  general 
for  the  jury. 

The  principle  may  be  further  illustrated  by  a  late  Illinois 
case.  A  heavy  counter,  some  eighteen  feet  long  and  three 
feet  high,  which  had  been  placed  across  the  sidewalk  in  one 
of  the  principal  thoroughfares  of  Chicago,  remained  so  for 
two  or  three  weeks,  when  some  children  were  climb- 
ing upon  it  and  *  thereby  caused  it  to  fall  over.     One    *  573 

1  Kreig  v.  Wells,  1  E.  D.  Smith,  74. 

2  See  Mangani  v.  Brooklyn  R.  R.  Co.,  38  N.  Y.  455 ;  Schmidt  v.  Milwaukie, 
&c.,  R.  R.  Co.,  23  Wis.  186. 

»  Lovett  V.  Salem,  &c.,  R.  R.  Co.,  9  Allen,  557. 

*  City  of  Ciiicago  v.  Major,  18  111.  360 ;  O'Flaherty  v.  Union  R.  R.  Co.,  45 
Mis.  70 ;  Baltimore,  &c.,  R.  R.  Co.  v.  State,  36  Md.  47. 
5  Downs  V.  N.  Y.  Central  R.  R.  Co.,  47  N,  Y.  83. 

[611] 


*  573  INFANCY. 

of  the  children,  six  years  old,  was  injured  and  died,  and 
the  parents  sued  the  city,  under  statute,  for  damages.  The 
court  held,  upon  the  state  of  facts  before  them,  that  the 
action  would  not  lie  because  there  was  negligence  shown  on 
both  sides,  —  on  the  part  of  the  city  in  allowing  the  counter 
to  remain  in  that  situation,  and  on  the  part  of  the  parents  in 
permitting  the  child,  at  his  age,  to  roam  the  crowded  thor- 
oughfares of  the  city  at  a  great  distance  from  his  home.  The 
negligence  on  the  part  of  the  city  was  less  than  that  attribu- 
table to  the  child's  parents,  and  therefore  there  could  be  no 
recovery.^ 

Causa  proxima  non  remota  sjyectatur  is  the  maxim  usually 
applied  in  cases  of  torts,  whether  the  plaintiff  be  infant  or 
adult.  But  where  the  tort  is  occasioned  by  the  negligence  of 
one  person,  the  infant  is  not  debarred  of  his  right  to  sue  the 
other  party  who  shared  in  it.  As  where  a  child  too  young  to 
take  care  of  himself — there  being,  we  shall  supjDose,  no  neg- 
ligence on  the  part  of  the  parent  —  is  in  danger  of  being  run 
oyer  by  a  steam-engine,  and  some  stranger  catches  him  up, 
meaning  to  save  his  life,  and  imprudently  rushes  over  the 
track  and  falls  with  the  child.  An  accident  so  occasioned 
might,  under  some  such  circumstances,  give  a  right  of  action 
against  either  the  stranger  or  the  railroad  company,  or 
against  them  jointly .^ 

While  an  infant  is  liable  for  torts,  it  does  not  follow  that 

his  contracts  in  compensation  for  torts  are  binding.     In  fact, 

his  submission  to  an  award,  and  notes  given  or  money 

*  574    paid  in  pursuance  *  thereof,  would  follow  the  principle 


1  City  of  Cliicago  v.  Starr,  42  111.  174.  In  this  case  it  was  further  suggested 
that  the  degree  of  carelessness  is  not  to  bo  judged  from  a  single  fatal  accident ; 
but  that  the  question  is  rather  wliat  would  have  been  the  course  of  a  prudent 
person  prior  to  the  accident.  And  the  habitual  carelessness  of  the  parents  in 
allowing  the  child  to  go  about  unattended  was  considered  material.  But  see 
Kerr  v.  Forgue,  54  111.  482,  limiting  the  rule.  Perhaps  the  course  most  consist- 
ent with  the  latest  authorities  is  to  leave  the  question  of  negligence,  so  far  as 
possible,  with  the  jury,  upon  the  state  of  facts  presented. 

2  See  North  Penn.  K.  R.  Co.  v.  Mahoney,  57  Penn  St.  187.  The  views  ex- 
pressed in  this  case  may  not  meet,  in  all  respects,  the  concurrence  of  other 
courts ;  but  the  principle  extracted  in  the  text  seems  to  the  writer  a  correct  one. 

[612] 


THE   INJURIES   AND   FRAUDS   OF   INFANTS.  *574 

of  void  and  voidable  contracts.^  And  on  the  other  hand, 
where  he  releases  or  compromises  for  any  injury  himself 
has  sustained,  the  same  rule  applies.^  The  parent  cannot 
sue,  as  such,  for  the  child's  injuries ;  neither  can  he  make  a 
binding  compromise,  except  as  to  his  own  demand  upon  the 
defendant.^ 

1  Hanks  v.  Deal,  3  M'Cord,  257 ;  Pitcher  v.  Turin  Plank  Road  Co.,  10  Barb. 
436  ;  Ware  v.  Cartledge,  24  Ala.  622. 

'-  Baker  v.  Lovett,  6  Mass.  78. 

^  See  Loomis  v.  Cline,  4  Barb.  453  ;  Passenger  R.  R.  Co.  t;.  Stutler,  54  Penn. 
St.  375.     But  see  Merritt  v.  Williams,  1  Harp.  Ch.  306. 


[613] 


*  575  INFANCY. 


*575  *  CHAPTER  V. 

RATIFICATION  AND    AVOIDANCE    OF    CONTRACTS, 

That  indulgence  which  the  law  allows  infants,  to  secure 
them  from  the  fraud  and  imposition  of  others,  can  only  be 
intended  for  their  benefit,  and  therefore  persons  of  riper  years 
cannot  take  advantage  of  such  transactions.  The  infant  may 
rescind  his  own  deed  or  contract ;  but  the  adult  with  whom 
he  deals  is  held  bound  meantime,  unless  the  transaction  be 
void,  and  not  voidable  ;  ^  or  one  of  those  contracts  which  bind 
an  infant  from  the  outset.^ 

But  the  infant  may  confirm  his  voidable  contract  on  arriv- 
ing at  full  age  ;  and  if  he  does  so  by  such  writings,  words,  or 
acts,  as  amount  to  a  legal  ratification,  he  will  become  liable 
then  and  thereafter.  But  what  is  in  law  a  sufficient  ratifica- 
tion remains  to  be  considered. 

Much  of  the  discussion  on  this  point  is  now  dispensed  with 
in  England,  by  a  short  statute  to  the  effect  that  "  no  action 
shall  be  maintained  whereby  to  charge  any  person  upon  any 
promise  made  after  full  age  to  pay  any  debt  contracted  dur- 
ing infancy,  or  upon  any  ratification,  after  full  age,  of  any 
promise  or  simple  contract  made  during  infancy,  unless  such 
promise  or  ratification  shall  be  made  by  some  writing,  signed 
by  the  party  to  be  charged  therewith."  ^  This  statute  is 
known  as  Lord  Tenterden's  Act.  Here  is  a  clear,  precise, 
and  definite  rule  ;  and  any  apparent  want  of  equity  is  com- 
pensated by  the  certainty  with  which  a  very  troublesome 
subject  is  managed,  one  which  has  so  constantly  led 
*o76    to    unprofitable    litigation.       The   *same   or   similar 

1  Smith  V.  Bowen,  1  Mod.  2-3  ;  2  Kent  Com.  236  ;  Warwick  v.  Bruce,  2  M.  & 
S.  205;  Brown  v.  Caldwell,  10  S.  &  R.  114 ;  supra,  ch.  2. 

■i  Supra,  ch.  3.  3  Stat.  9  Geo.  4,  c.  14,  §  5  (1828). 

[614] 


RATIFICATION   AND   AVOIDANCE  OF   CONTRACTS.     *576 

p^o^dsions    are    to   be  found   in  the  laws   of    some    of   our 
States.^ 

But  even  statutes  will  raise  legal  difficulties.  And  the 
difficulty  which  arises  under  this  particular  act  is  to  distin- 
guish ratification  from  a  new  promise.  What  is  meant  by  a 
ratification  in  the  words  of  this  statute  ?  The  Court  of 
Exchequer,  not  many  years  since,  admitting,  in  the  course  of 
argument,  that  the  statute  made  a  distinction  between  ratifi- 
cation and  new  promises,  gave  it  as  their  opinion  that  any  act 
or  declaration  which  recognizes  the  existence  of  a  promise  as 
binding,  is  a  ratification  of  it ;  and  that  the  statute  "  ratifi- 
cation "  goes  so  far  as  to  comprehend  such  a  ratification  as 
would  make  a  person  liable  as  principal  for  an  act  done  by 
another  in  his  name.^  And  hence  certain  letters  written  by 
the  defendant  in  reference  to  payment  of  his  debt  out  of  his 
money  in  the  hands  of  a  third  party  were  held  binding. 
More  lately  this  definition  of  ratification  was  reconsidered  by 
the  same  court  in  another  case,  where  the  correspondence  was 
over  a  dishonored  bill  of  exchange,  and  another  person,  not 
the  infant,  was  to  be  primarily  liable ;  and  the  judges  were 
divided  in  opinion.  But  the  disiDosition  seemed  to  be  to 
define  ratification  anew,  as  a  willing  admission  that  the  party 
is  liable  and  hound  to  pay  the  debt  arising  from  a  contract 
which  he  made  when  an  infant.^  Still  later  a  man,  being  of 
age,  signed  the  following  statement  at  the  foot  of  an  account 
of  the  items  and  prices  of  goods  furnished  to  liim  \\\\\\q  an 
infant  by  the  plaintiff :  "  Particulars  of  account  to  the  end  of 
1867,  amounting  to  X162  lis.  Qd.  I  certify  to  be  correct  and 
satisfactory."  It  was  held  that  this  was  not  a  sufficient 
ratification  under  the  statute,  because  these  *  words  *  577 
did  not  really  admit  the  debt  to  be  a  debt  existing  and 
binding  upon  the  defendant.^ 

Some  statutes  regard  the  allowance  of  a  reasonable  time 

1  See  Thurlow  v.  Gilmore,  40  Me.  378.  2  Harris  v.  Wall,  1  Exch.  122. 

3  Mawson  v.  Blane,  10  Exch.  206 ;  26  E.  L.  &  Eq.  560.  See  further,  Smith 
Contr.  287.  Lord  Ellenborough  considered  it  more  correct  to  say,  in  general, 
that  the  infant  makes  a  new  promise  after  he  comes  of  age.  Cohen  v.  Arm- 
strong, 1  M.  &  S.  724.  As  to  what  is  a  sufficient  compliance  with  the  statute, 
see  Hartley  v.  Wharton,  11  Ad.  &  EI.  934  ;  Hyde  v.  Jolmson,  2  Bing.  N.  C.  778 ; 
Hunt  V.  Massey,  6  B.  &  Ad.  902.  *  llowe  v.  Hopwood,  L.  R.  4  Q.  B.  1. 

[616] 


*577  INFANCY. 

only  after  attaining  majority  for  disaffirmance  of  a  contract 
made  in  infancy,  requiring  the  infant  both  to  disaffirm  and  to 
make  restitution.^  Others  seek  to  prevent  sales  of  the  minor's 
property  for  some  time  after  he  reaches  majority.^ 

Independently  of  all  statutes,  however,  the  question  has 
been  asked  again  and  again,  what  language  and  what  conduct 
on  the  part  of  the  infant  attaining  to  majority  will  suffice  to 
give  binding  force  to  his  acts  originally  voidable.  The  Amer- 
ican cases  on  this  point  are  ver}'  numerous.  And  it  must  be 
confessed  that  the  more  this  subject  has  been  discussed,  the 
less  it  appears  to  be  understood.  Two  principles  are  evi- 
■dently  in  conflict :  the  one,  that  an  infant  should  be  protected 
against  his  own  imprudence  ;  the  other,  that  bona  fide  cred- 
itors ought  not  to  be  cheated.  Some  cases  have  given  more 
prominence  to  the  first  principle,  others  to  the  second. 

There  cannot  be  much  doubt  that  at  the  time  Lord  Tenter- 
den's  Act  was  passed,  the  English  rule  was,  that  an  infant 
may  by  his  general  conduct,  independently  of  a  precise  prom- 
ise or  new  contract,  on  his  part,  render  himself  liable  for  his 
contracts  made  while  an  infant.^  The  statute  was  passed  to 
change  this  rule.  On  that  point  we  need  not  dwell.  This 
does  not  bind  American  courts,  it  is  true,  for  they  had 
adopted,  in  many  instances,  another  rule  of  the  common  law 
to  which  they  were  at  liberty  to  adhere,  in  spite  of  the  later 
English  decisions  ;  since  it  was  the  rule  our  ancestors  brought 
over  with  them. 

Now,  what  is  the  American  doctrine  ?  We  take  a  case  de- 
cided within  a  few  years  in  Massachusetts,  where  an  infant 
had  made  a  promissory  note,  and  after  majority  admitted 
several  times  that  he  owed  the  debt,  and  said  he  would  pay 
it  when  he  could.  Says  the  court :  "It  has  long  been  settled 
that  a  direct  promise,  when  of  age,  is  necessary  to  establish  a 
contract  made  during  minority,  and  that  a  mere  acknowledg- 
ment will  not  have  that  effect."  ^     We  take  still  another, 

1  Wright  V.  Germain,  21  Iowa,  585;  infra,  p.  586. 

2  SouUier  v.  Kern,  69  Peon.  St.  16. 

3  See  Goode  v.  Harrison,  5  B.  &  Aid.  147 ;  Smith  Contr.  283,  284. 
*  Proctor  I'.  Sears,  4  Allen,  95  (1862),per  Metcalf,  J. 

[616  ] 


EATIFICATION   AND   AVOIDANCE    OF   CONTRACTS.    *  577 

decided  in  New  York  onlj  a  little  later.  Says  a  judge 
of  the  Court  *  of  Appeals,  after  a  most  exhaustive  re-  *  578 
view  of  the  cases :  "  I  think  that  the  course  of  decision 
in  this  State  authorizes  us  to  assume  that  the  narrow  and 
stringent  rule,  formerly  enunciated,  that  to  establish  the  con- 
tract, when  made  in  infancy,  there  must  be  a  precise  and 
positive  promise  to  j)ay  the  particular  debt,  after  attaining 
majority,  is  not  sustained  by  the  more  modern  decisions."  ^ 
Time  has  not  with  us  lessened  the  force  of  Chancellor  Kent's 
observation,  many  years  ago,  that  "  the  books  appear  to  leave 
the  question  in  some  obscurity,  when  and  to  Avhat  extent  a 
positive  act  on  the  part  of  the  infant  is  recj^uisite."  ^ 

It  may  be  remarked  that  a  great  change  was  gradually 
developed  in  the  law  of  infancy,  by  making  contracts  void- 
able which  before  were  deemed  void.^  This  might  reasonably 
be  deemed  to  have  introduced  a  new  element  into  the  consid- 
eration of  such  cases  ;  the  result  tending  towards  freedom  in 
the  courts,  and  enabling  them  to  repudiate  artificial  refine- 
ments and  do  substantial  justice.  It  certainly  throws  upon 
the  modern  courts  a  greater  responsibility  than  formerly  in 
ruling  between  complete  and  incomplete  ratification  ;  or  (if 
legal  precision  requires  another  expression),  in  determining 
whether  a  new  promise  has  passed  from  the  person  after 
attaining  full  age.  But  this  change  has  not  always  been  kept 
in  view.  In  Xew  York,  the  modern  doctrine  is  that  ratifica- 
tion or  confirmation  of  the  contract  made  in  infancy  will  bind 
the  party  if  it  take  place  after  his  coming  of  age  ;  that  a  new 
promise,  positive  and  precise,  equivalent  to  a  new  contract,  is 
not  now  essentia]  ;  but  that  a  ratification  or  confirmation  of 
what  M^as  done  during  the  minority  is  sufficient  to  make  the 
contract  obligatory.*  And  it  is  well  observed  that  the  words 
"ratify  and  confirm"'  necessarily  import  that  there  was 
something  in  existence  to  which  the  ratification  or  confirma- 
tion could  attach,  entirely  ignoring  therefore  the  notion  that 
an  infant's  obligations  or  contracts  were  extinguished  by  the 
state  of  infancy.^     But  it  must  be  borne  in  mind  that  in  some 

1  Per  Davies,  J.,  Henry  i-.  Root,  33  N.  Y.  545  (1865). 

2  2  Kent  Com.  237.  3  See  ch.  2,  supra. 
*  Henry  v.  Root,  33  N.  Y.  526.  5  ib. 

[617] 


*  578  INFANCY. 

other  States  the  rule  is  quite  different.     So  that  we  have 
nothing  which  may  safely  be  pronounced  the  American  doc- 
trine upon  this  subject. 

*  579        *  It  seems  settled  that  silence  for  an  unreasonable 

time,  taken  in  connection  with  other  facts,  such  as  using 
the  property  purchased,  retaining  possession  of  it,  selling  or 
mortgaging  it,  or  in  any  way  converting  it  to  the  infant  pur- 
chaser's own  use,  would  be  sufficient  ratification  to  bind  the 
infant  after  reaching  manhood. ^  As  where  a  minor  bought  a 
yoke  of  oxen,  for  which  he  gave  his  note,  and  after  arriving  at 
full  age  converted  the  oxen  to  his  own  use  and  received  the 
avails.2  Mere  lapse  of  time,  it  is  true,  will  not  usually  amount 
to  confirmation.  But  a  brief  lapse  of  time  in  connection  with 
other  circumstances  may  amount  to  confirmation.^  And  cases 
are  not  wanting  to  establish  the  position  that  ratification  will 
be  inferred  from  tacit  assent  under  circumstances  where  silence 
is  not  excusable. 

Yet  that  the  cases  are  somewhat  conflicting  and  difficult  in 
this  respect  to  be  reconciled,  will  appear  from  the  citation  of 
a  few.  In  Alabama,  an  infant  ten  days  before  majority  pur- 
chased a  note  and  drew  an  order  upon  a  third  person  in  pay- 
ment, and  received  notice  of  non-payment.  It  was  held  in  a 
suit  several  years  after  that  his  failure  to  renew  the  note  and 
disaffirm,  warranted  the  conclusion  that  he  intended  to  abide 
by  it.^  Still  more  rigidly  was  the  same  doctrine  enforced  in 
an  earlier  New  York  case.^  Part-payment,  or  even  promise 
of  part-payment,  may  operate  as  confirmation.'^  So  may  author- 
ity given  to  an  agent  to  pay,  though  the  agent  does  nothing." 
But  declarations  of  affirmance  by  one  purporting  to  act  as  the 

1  See  note  Am.  editor  in  16  E,  L.  &  Eq.  558  ;  Lawson  v.  Lovejoy,  8  Me.  405 ; 
Boyden  v.  Boyden,  9  Met.  519;  Cheshire  v.  Barrett,  4  M'Cord,  241 ;  Boody  v. 
McKenney,  23  Me.  517. 

2  Lawson  v.  Lovejoy,  8  Me.  405.  And  see  Alexander  v.  Heriot,  1  Bail.  Ch. 
223;  Deason  v.  Boyd,  1  Dana,  45;  Vandevort's  Appeal,  43  Penn.  St.  462; 
Stern  v.  Freeman,  4  Met.  (Ky.)  309 ;  Belton  v.  Briggs,  4  Desaus.  465. 

3  Cresinger  v.  Welch,  15  Ohio,  156  ;  Strong,  J.,  in  Irvine  v.  Irvine,  9  Wall. 
617. 

*  Thomasson  v.  Boyd,  13  Ala.  419. 

5  Delano  v.  Blake,  11  Wend.  85. 

6  Little  V.  Duncan,  9  Rich.  Law,  55;  Stokes  v.  Brown,  4  Chand.  (Wis.)  39. 

7  Orvis  V.  Kimball,  3  N.  H.  314. 

[618] 


EATIFICATION  AND  AVOIDANCE   OF    CONTRACTS.     *  579 

attorney  or  solicitor  of  the  late  infant,  do  not  amount  to  rati- 
fication if  his  authority  be  not  proved.^  Submitting  the  ques- 
tion of  liability  after  coming  of  age  to  arbitration  does  not 
amount  to  ratification .^  But  letters  indicating  intent 
to  *  abide  by  a  former  award  may  ;  as  well  as  the  en-  *  580 
joyment  of  its  benefits.^  A  promise  to  settle  by  note 
against  a  third  party  is  held  sufficient.^  So  is  a  promise  to 
settle  by  work.^  Nor  do  the  recent  cases  seem  to  require  that 
a  promise  to  settle  should  be  very  precisely  expressed.  The 
mere  retention  of  consideration  money  appears  to  amount  to 
ratification  in  California.^  But  this  is  not  the  general  rule 
elsewhere.'  Keeping  and  using  an  article  purchased  during 
infancy,  with  equivocal  expressions  of  intention,  may  bind  the 
infant  so  that  he  cannot  return  it  afterwards  to  the  vendor. 
So  may  a  sale  of  the  article  with  full  knowledge  of  the  fact  of 
purchase.^  A  verbal  promise  is  sufficient  to  bind.^  A  con- 
tract to  work  is  ratified  by  continuance  in  the  employer's 
service  for  a  month  after  attaining  full  age.^*^  Plea  of  the 
execution  of  a  note,  in  defence  of  a  suit  in  assumpsit,  is  held 
to  be  confirmation  of  the  note  itself.^^  Slight  words  importing 
recognition  and  confirmation  of  the  promise,  have  been  treated 
as  sufficient ;  or,  at  least,  as  sufficient  for  a  jury  to  consider. ^^ 
And,  according  to  a  recent  decision  of  the  Supreme  Court  of 
the  United  States,  it  is  a  question  for  the  jur}'  and  not  for  the 
court  to  decide,  whether  the  evidence  submitted  in  an}^  case 
shows  an  affirmance  or  not,  if  there  be  any  evidence  tending 
to  show  it.^^ 

On  the  other  hand  are  numerous  decisions  which  seem  to 
bear  against  the  creditor.     Says  a  Massachusetts  judge  in  an 

1  Carrell  v.  Potter,  23  Mich.  377. 

2  Benham  v.  Bishop,  9  Conn.  330. 

3  Barniiby  v.  Barnaby,  1  Pick.  221 ;  Jones  v.  Plienix  Bank,  4  Seld.  228. 
*  Taft  V.  Sergeant,  18  Barb.  320. 

5  Edgerly  v.  Shaw,  5  Post.  514.  6  Hastings  v.  DoUarhide,  24  Cal.  195. 

^  Benham  v.  Bishop,  9  Conn.  330.  8  Shropsliire  v.  Burns,  46  Ala.  108. 

a  AVcst  V.  Penny,  16  Ala.  186;  Martin  v.  Mayo,  10  Mass.  137. 

10  Forsyth  v.  Hastings,  27  Vt.  646. 

11  Best  V.  Givens,  3  B.  Monr.  72. 

1-  Hoit  V.  Underbill,  9  N.  H.  436  ;  Bay  v.  Gunn,  1  Denio,  108 ;  Whitney  v. 
Dutch,  14  Mass.  457. 

13  Irvine  v.  Irvine,  9  Wall.  617,  628. 

[619] 


*  580  INFANCY. 

early  case  :  "  By  the  authorities  a  mere  acknowledgment  of 
the  debt,  such  as  would  take  a  case  out  of  the  statute  of 
limitations,  is  not  a  ratification  of  a  contract  made  during 
minority."  ^  Yet  the  much  quoted  distinction  there  taken 
between  "acknowledgment"  that  a  debt  is  due,  and  verbal 
"  ratification  and  confirmation  "  is  either  exceedingly  subtle, 
or  at  the  present. da}'  frequently  misapplied.  The  distinction 
further  developed  leads,  as  we  find,  to  the  conclusion 

*  581    that  where  one  says  he  *  owes  the  debt  and  has  not 

the  means  of  payment,  but  will  pay  as  soon  as  able,  or 
words  to  this  effect,  this  is  only  an  acknowledgment,  and 
not  binding.^  Such  decisions  do  not  always  support  the 
explanation  sometimes  given,  that  the  American  cases  pro- 
ceed upon  the  ground  of  intention  to  ratify  ;  though  there  are 
doubtless  cases  which  support  so  reasonable  a  view.^ 

What  is  it  that  suffices  to  take  a  case  out  of  the  statute  of 
limitations?  "Either  an  express  promise  to  pay,  or  an  un- 
qualified acknowledgment  of  present  indebtedness;  in  which 
latter  case  the  Icnv  ivill  imply  a  pi-omise  to  pay .""  ^  What  is 
ratification  of  a  contract?  So  far  as  a  definition  may  be 
hazarded,  it  is  a  voluntary  admission  that  one  is  liable  and 
hound  by  the  terms  of  an  existing  though  inchoate  or  imper- 
fect contract.  A  debt  is,  of  course,  created  by  contract  ex- 
press er  implied.  But  some  say  that  there  must  always  be  a 
new  contract  made  by  the  minor  on  reaching  majority.  To 
hold  that  a  new  contract  for  payment  is  essential,  differs 
certainly  from  ruling  that  ratification  and  confirmation  of 
an  existing  contract  binds  one  who  was  lately  an  infant. 
But  once  again  such  contracts  of  an  infant  are  called  void- 
able. Does  not  the  term  voidable  imply  something  still  dif- 
ferent ?  something  which  binds  until  expressly  repudiated? 

1  Whitney  v.  Dutch,  14  Mass.  460,  per  Parker,  C.  J. 

2  See  Proctor  v.  Sears,  4  Allen,  95  ;  Thompson  v.  Lay,  4  Pick.  48;  Ford  v. 
Phillips,  1  Pick.  203 ;  Hall  v.  Gerrish,  8  N.  H.  374 ;  Goodsell  v.  Myers,  3  Wend. 
479  ;  Wilcox  v.  Roath,  12  Conn.  550 ;  Chandler  v.  Glover,  82  Penn.  St.  509. 

3  See  Thing  v.  Libbey,  16  Me.  55  ;  Dana  r.  Stearns,  3  Cush.  372;  Smith  v. 
Kelly,  13  Met.  309.    And  see  note  to  16  E.  L.  &  Eq.  558. 

4  See  Gailey  v.  Crane,  21  Pick.  523 ;  Wakeman  v.  Sherman,  5  Seld.  91 ;  Mar- 
shall, C.  J.,  in  Ciemenstine  v.  Williamson,  8  Cranch,  72 ;  Story,  J.,  in  Bell  v. 
Morrison,  1  Pet.  351. 

[  620] 


RATIFICATION   AND   AVOID ANX'E   OF   CONTRACTS.    *  581 

And  if  so,  how  doubly  inconsistent  to  exact  a  specific  prom- 
ise to  pay,  over  and  above  an  admission  of  present  indebted- 
ness. In  truth,  the  law  is  here  overburdened  with  its  own 
definitions  ;  judicial  terms,  inconsistent  and  varied,  bewilder 
the  judicial  mind  ;  and  thankless,  indeed,  must  be  the  task  of 
refining  upon  distinctions  which  rest  upon  no  rational  basis  of 
difference.^ 

*  The  writer  makes  no  attempt  to  reconcile  the  *  582 
numerous  dicta  of  the  courts  on  this  important  subject. 
They  are  irreconcilable.  If  American  decisions  themselves 
may  be  regarded  as  pointing  out  a  general  rule,  it  seems  to  be 
this  :  that  the  mere  acknowledgment  that  a  certain  transaction 
constitutes  a  debt  is  insufficient  to  bind  him  lately  an  infant ; 
but  that  an  acknowledgment  to  the  extent  that  he  justly 
owes  that  debt,  with  equivocal  expressions  as  to  some  future 
payment,  may  or  may  not  be  considered  sufficient,  though  the 
better  opinion  is  in  favor  of  their  sufficiency  ;  that  acts  or 
omissions  on  his  part,  which  are  prejudicial  to  the  adult 
party's  interests,  or  evince  his  own  intention  to  retain  the 
advantages  of  a  contract  made  during  infancy,  may  be,  espe- 
cially when  reasonable  time  has  elapsed,  construed  into  a 
ratification,  —  the  presumption  of  honorable  motives  being 
fair  and  reasonable  under  such  circumstances  ;  and  finally, 
that  a  distinct,  unequivocal  promise,  verbal  or  written,  made 
after  attaining  majority,  is  always  sufficient,  this  apparently 
superseding   the    former   j^romise    altogether.'^      In    cases  of 

1  Lord  Kenyon  seems  responsible  for  the  doctrine  that  tlie  case  of  infancy 
differs  in  essence  from  that  under  the  statute  of  limitations.  He  says  :  "  In 
the  case  of  an  infant,  I  shall  hold  an  acknowledgment  not  to  be  sufficient,  and 
require  proof  of  an  express  promise  to  pay,  made  by  the  infant,  after  he  had 
attained  that  age  when  the  law  presumes  that  he  has  discretion."  Thrupp  v. 
Fielder,  2  Esp.  G28. 

-  See  American  cases  collected  in  Am.  editor's  note  to  IG  E.  L.  &  Eq.  558  ; 
Bobo  V.  Hansen,  2  Bail.  114  ;  Ackerman  v.  Bunypn,  1  Hilt.  (N.  Y.),  58  ;  Vaughan 
V.  Parr,  20  Ark.  600 ;  Richardson  v.  Boright,  'J  Vt.  368;  Hodges  v.  Hunt.  22 
Barb.  150;  State  v.  Plaisted,  43  N.  H.  413  ;  Wright  v.  Steele,  2  N.  H.  51;  Conk- 
lin  V.  Ogborn,  7  Ind.  553;  Merriam  r.  Wilkins,  6  N.  H.  413  ;  Jones  v.  Butler,  30 
Barb.  641  ;  Curtis  v.  Patton,  11  S.  &  R.  305  ;  Norris  v.  Vance,  3  Rich.  164;  Oswald 
V.  Broderick,  1  Clarke  (Iowa),  380. 

[621] 


*  582  INFANCY. 

donbt,  moreover,  it  would  seem  to  be  better  to  treat  the 
evidence  presented  as  constituting  facts  for  the  consideration 
of  the  jury,  rather  tlian  a  question  of  law  for  the  court  to 
pass  upon. 

Some  cases  go  even  farther,  and  require  an  express  repudi- 
ation on  the  infant's  part.    Such  is  the  principle  which 

*  583    seems  *  to  support  some  of  the  partnership  cases  already 

noticed,^  and  it  comports  with  the  theory  that  such 
contracts  are  voidable.  And  in  several  recent  instances  the 
English  courts  have  held  that  an  infant  shareholder  is  prima 
facie  liable  to  pay  calls  or  assessments,  and  must  repudiate 
within  a  reasonable  time  after  attaining  manhood,  or  remain 
bound.2  But  stock  and  partnership  transactions  stand  upon 
a  footing  somewhat  peculiar,  and  we  are  not  justified  in  de- 
ducing therefrom  a  general  principle  that  express  repudiation 
is  necessary  in  all  voidable  contracts  of  an  infant ;  for  the  deci- 
sions certainly  do  not  go  to  this  length,  whatever  the  dida? 

Express  acts  of  disaffirmance  leave  no  doubt  of  intention 
on  this  point ;  and  they,  of  course,  suffice  to  avoid  the  contract 
made  during  infanc3^  As  in  a  sale  where  one  gives  notice 
that  he  considers  the  bargain  void,  and  offers  to  return  the 
consideration.*  There  are  many  other  waj^s  in  which  one 
may  disavow  his  intention  of  carrying  into  effect  the  contract 
made  during  infancy,  as  by  leaving  the  service  of  the  person 
to  whom  he  was  engaged  and  going  into  the  service  of  an- 
other, or  entering  lands  once  conveyed  and  conveying  them 
anew ;  but  he  should  lose  no  time  after  reaching  majority  in 

averring  his  intent  and  pursuing  his  remedies. 

*  58-1:        *  A  conditional  promise  when  of  age  to  jDcrform  a 

contract   made  during  minority  will   not   sustain  an 

^  See  Goode  i'.  Harrison,  5  B.  &  Aid.  147  ;  supra,  ch.  2. 

2  Dublin  &  Wicklow  R.  R.  Co.  v.  Black,  8  Exch.  181 ;  16  E.  L.  &  Eq.  556; 
Smith  Contracts,  285,  and  cases  cited. 

3  See  Holmes  v.  Blogg,  8  Taunt.  39;  Richardson  i>.  Borlght,  9  Vt.  368;  Kline 
V.  Beebe,  6  Conn.  494  ;  Hoit  v.  Underhili,  9  N.  H.  439. 

4  See  Willis  v.  Twombly,  13  Mass.  204 ;  Aldrich  v.  Grimes,  10  N.  H.  194 ; 
Williams  v.  Norris,  2  Litt.  157  ;  Hill  v.  Anderson,  5  S.  &M.  216  ;  M'Gill  v.  Wood- 
ward, 3  Brev.  401. 

[622] 


RATIFICATION  AND  AVOIDANCE   OF  CONTRACTS.    *  584 

action    thereon  without   proof  that  the    condition  has  been 
fulfilled.i 

li'  an  infant  makes  a  lease  of  his  land  (which  is  voidable  if 
for  his  benefit,  but  not  otherwise),  and  accepts  rent  after 
attaining  full  age,  and  by  other  slight  acts  affirms  the  con- 
tract, this  is  a  ratification,  and  he  cannot  afterwards  disaffirm .^ 
And  where  a  minor  mortgages  his  land,  and  on  coming  of  age 
conveys  it  to  another  person  in  fee,  subject  to  the  mortgage, 
which  he  recognized  in  the  second  deed,  it  is  held  to  be  a 
ratification  of  the  mortgage.^  Ratification  of  a  conveyance 
is  ratification  of  the  mortgage  made  to  secure  payment;  he 
cannot  repudiate  the  one  and  not  the  other.''  "  So  slight  acts 
of  assent  on  the  infant's  part  are  held  sufficient  to  confirm 
leases  made  by  a  guardian  beyond  the  term  of  his  authority.^ 
But  an  act  of  the  late  infant,  clearly  showing  his  intention 
not  to  be  bound  by  his  mortgage,  is  a  sufficient  avoidance  of 
it.^  A  prompt  declaration  of  his  intention  to  disaffirm,  and 
a  conveyance  to  another,  will  answer.""  Nor  even  a  contract  of 
sale.^ 

As  to  the  infant's  mortgage,  it  may  be  further  remarked 
that  a  minor  cannot  avoid  a  mortgage  given  to  secure  either 
real  or  personal  property  purchased  by  him  without  avoiding 
the  sale  also.^  The  purchase  and  mortgage  back  constitute 
one  transaction.  And  an  assignment  of  the  mortgage  will 
carry  to  the  assignee  all  the  mortgagee's  rights,  whether  the 
infant  affirms  or  disaffirms. ^°  The  subsequent  ratification 
of  a  mortgage,  as  of  other  deeds,  relates  back  to  the  first 

1  Proctor  V.  Sears,  4  Allen,  95  ;  Everson  i-.  Carpenter,  17  Wend.  419  ;  Chand- 
ler V.  Glover,  32  Penn.  St.  509. 

2  Aslifield  V.  Asiifield,  W.  Jones,  157 ;  Wimberley  v.  Jones,  1  Geo.  Dec.  91. 

3  Boston  Bank  v.  Cliamherlin,  15  Mass.  220;  Story  v.  Johnson,  2  Yon.  &  Coll. 
Exch.  607 ;  Phillips  v.  Green,  5  Monr.  355;  Lynde  v.  Budd,  2  Paige,  191. 

*  Young  V.  McKee,  13  Mich.  552;  Bigelow  v.  Kinney,  3  Vt.  353 ;  Kobbins  v. 
Eaton,  10  N.  H.  561. 

6  See  Smith  v.  Low,  1  Atk.  489.  «  State  v.  Plaisted,  43  N.  II.  413. 

7  White  V.  Flora,  2  Overton,  426  ;  Hoyle  v.  Stowe,  2  Dev.  &  Bat.  320. 

8  Mustard  v.  Wolilford,  15  Gratt.  329.  And  see  Cook  i-.  Tounibs,  36  Miss, 
685. 

9  Heath  v.  West,  8  Post.  101 ;  Dana  v.  Coombs,  6  Greenl.  89. 
10  Ottman  v.  Moak,  3  Sandf.  Ch.  431. 

[623] 


*  584  INFANCY. 

*  585    delivery,  so  as  to  affect  *  all  intermediate  persons,  ex- 

cept purchasers  for  a  valuable  consideration.^  And 
where  a  loan  of  money  was  made  to  an  infant  for  which  he 
executed  a  bond  and  mortgage,  and  in  a  will  made  after  he 
became  of  age  directed  the  payment  of  "  all  his  just  debts  " 
and  died  ;  it  was  held  that  the  will  sufficiently  confirmed  the 
mortgage.-  Even  notes  given  for  the  purchase-money  of 
land,  not  secured  by  mortgage,  have  been  equitably  enforced  ; 
and  the  court  has  refused  to  permit  the  notes  to  be  disaffirmed 
and  the  land  reclaimed.^  And  yet  the  retention,  after  reach- 
ing majorit3%  of  the  proceeds  of  land  purchased  and  after- 
wards sold  by  the  person  while  an  infant,  is  not  of  itself 
sufficient  to  render  him  liable  upon  his  covenant  to  pay  an 
outstanding  mortgage  upon  the  land  which  he  had  assumed 
as  part  of  the  consideration  of  his  purchase.* 

It  would  seem  that  the  infant  is  not  precluded  from  dis- 
affirming his  conveyance  of  real  estate  b}'  the  mere  lapse  of 
time.  Laches  is  not  imputable  to  an  infant.^  Where  land 
had  been  sold  by  an  infant  it  was  said  in  a  Connecticut  case, 
years  ago,  the  period  of  acquiescence  being  thirty-five  years, 
that  the  infant  ought  to  declare  his  disaffirmance  within  a 
reasonable  time  ;  and  similar  dicta  may  be  found  in  other 
courts ;  but  there  seems  to  be  no  doubt  upon  the  decided 
cases,  that  mere  acquiescence  is  no  confirmation  of  a  sale  of 
lands  unless  it  has  been  prolonged  for  the  statutory  period  of 
limitation  ;  and  that  an  avoidance  may  be  made  any  time 
before  the  statute  has  barred  an  entry .^ 

Whatever  might  be  the  effect  of  an  infant's  own  fraud,  as 
against  himself,  it  would  appear  that  a  subsequent  purchaser 
or  mortgagee  in  good  faith  and  for  a  valuable  consideration, 
will  hold  his  title  as  against  a  deed  made  by  the  owner  during 

1  Palmer  v.  Miller,  25  Barb.  399. 

2  Mercliants'  Fire  Ins.  Co.  v.  Grant,  2  Edw.  Ch.  544. 

8  Weed  V.  Beebe,  21  Vt.  495  *  Walsh  v.  Po\Yers,  43  N.  Y.  23. 

6  Smith  V.  Sackett,  5  Gilm.  534. 

6  1  Am.  Lead.  Cas.  4th  ed.  256;  Met.  Contr.  60,  61,  and  cases  cited;  Tucker 
V.  Moreland,  10  Pet.  58;  Boody  v.  McKenney,  23  Me.  517 ;  Drake  v.  Kamsay,  5 
•  Ohio,  251  ;  Jackson  v.  Burchin,  14  Johns.  124;  Urban  r.  Grimes,  2  Grant,  96; 
Vaughan  v.  Parr,  20  Ark.  600;  Voorliies  v.  Voorhies,  24  Barb.  150;  Ware  v. 
Brush,  1  McLean,  533  ;  Moore  r.  Abernethy,  7  Blackf.  442 ;  Cole  v.  Pennoyer, 
14  111.  158. 

[624] 


RATIFICATION  AND  AVOIDANCE  OF   CONTRACTS.    *  585 

his  minority,  of  which  he  has  received  neither  actual  nor  con- 
structive notice  ;  and  this,  too,  notwithstanding  ratification  or 
fraud  of  the  minor  might  have  rendered  that  deed  valid. ^ 

Yet  lapse  of  time,  together  with  slight  circumstances,  have 
in  many  instances  sufficed  to  sustain  an  infant's  deed.  A 
Missouri  case,  indeed,  holds  that  mere  declarations  or  a  prom- 
ise upon  contingency  will  not  ratify  and  confirm.^  But  the 
authorities  generally  manifest  extreme  repugnance  at 
setting  *  aside  a  solemn  conveyance  of  land  and  re-  *  586 
opening  beneficial  transactions,  merely  to  suit  the 
caprice  or  dishonorable  intent  of  infants.^  This  may  explain 
another  dictum  to  the  effect  that  an  infant's  deed  will  be  con- 
firmed by  any  deliberate  act  after  he  comes  of  age,  by  which 
he  takes  benefit  under  it  or  recognizes  its  validity ;  ^  which  is 
not  without  precedents  for  support.  Thus,  in  some  instances 
where  the  infant  after  coming  of  age  saw  the  purchaser  make 
valuable  improvements  and  incur  considerable  expense,  and 
said  nothing  for  years,  he  was  held  bound.^  So,  too,  it  would 
seem,  where  one  knowing  his  title,  permits  another  to  pur- 
chase without  giving  notice  of  his  claim.''  While  mere  lapse 
of  time  less  than  the  statute  period  will  not  suffice,  yet  the 
lapse  of  a  less  period  in  connection  with  such  circumstances 
may.  A  tribunal  of  justice  may  properly  decline  to  become 
the  instrument  of  a  knave.  So,  in  Illinois,  and  some  other 
States,  the  statute  makes  conveyances  of  a  minor  binding, 
unless  disaffirmed  and  repudiated  within  a  certain  period,  say 
three  years  after  reaching  majority.'  In  short,  there  is,  ac- 
cording to  the  best  authorities,  a  well-recognized  distinction 

1  Black  V.  Hills,  3G  III.  376;  Inman  v.  Inman,  L.  R.  15  Eq.  200. 

-  Clamorgan  v.  Lane,  'J  Mis.  440.     And  see  Davidson  v.  Young,  38  111.  145. 

*  See  cases  cited  in  preceding  paragraph. 

<  McConnic  v.  Leggett,  8  Jones,  425. 

5  Wlieaton  v.  East,  5  Yerg.  41  ;  Wallace  v.  Lewis,  4  Harring.  75 ;  Jones  v. 
Plienix  Bank,  4  Seld.  235. 

«  Hall  V.  Simmons,  2  Rich.  Eq.  120;  Alsworth  v.  Cordtz,  31  Miss.  32;  Belton 
V.  Briggs,  4  Desaus.  405;  Cresinger  v.  Welch,  15  Ohio,  150;  Emmons  r.  Mur- 
ray, 10  N.  II.  385. 

7  Bhinkenship  v.  Stout,  25  111.  132 ;  Wright  v.  Germain,  21  Iowa,  585.  And 
see  Ferguson  v.  Bell,  17  Mis.  347;  Bostwick  i-.  Atkins,  3  Comst.  53;  Pursley 
V.  Hays,  17  Iowa,  311  ;  Sheldon  v.  Newton,  3  Ohio,  n.  s.  494 ;  Rainsford  v. 
Rainsford,  Spears  Ch.  385. 

40  [  625  ] 


*  586  INFANCY. 

between  the  nature  of  those  acts  which  are  necessary  to 
avoid  an  infant's  deed,  and  those  which  are  sufficient  to  con- 
firm it.  The  deed  cannot  be  avoided  except  by  some  act 
equally  solemn  with  the  deed  itself.  But  acts  of  a  character 
which  would  be  insufficient  to  avoid  such  a  deed  may  amount 
to  an  affirmance  of  it.^ 

The  purchaser  of  an  infant's  lands  succeeds  to  all  the  in- 
fant's rights  in  relation  to  it,  although  those  rights  grow  out 
of  his  infancy.^  And  a  party  in  possession  under  the  infant's 
deed  cannot  be  regarded  as  a  trespasser  before  the  deed  is 
avoided.^ 

Whether  it  is  necessary  that  an  entry  upon  the  land  to 
regain  seisin  be  made  to  perfect  the  title  of  the  person  intend- 
ing to  disaffirm  his  conveyance  as  infant,  does  not  clearly 
appear  from  the  authorities.  The  old  rule  was  that  in  order 
to  avoid  a  feoffment  this  was  necessary.  But  conveyance  by 
feoffment  has  been  superseded  by  other  methods  of 

*  587    transferring  *  real  property  in  England,  and  it  is  not 

in  use  here.  In  some  of  the  earlier  New  York  cases, 
where  an  infant  had  sold  wild  lands  to  other  persons,  and  had 
after  coming  of  age  conveyed  by  similar  deed  the  same  lands 
to  another,  it  was  held  that  the  first  conveyance  had  been 
legally  avoided,  and  the  last  purchaser  was  entitled  to  the 
property.*  A  case  before  the  Supreme  Court  in  the  United 
States  is  supposed  to  sustain  the  same  view ;  only  arguendo^ 
however,  for  in  point  of  fact  the  person  making  the  second 
conveyance  remained  in  possession  all  the  time  ;  and,  as  the 
court  observed,  "could  not  enter  upon  himself."^  Following 
the  indication  of  these  three  important  cases,  several  of  the 
State  courts  have  since  held  that  a  conveyance  by  an  infant 
of  the  same  land  to  another  person,  after  he  comes  of  age, 
effectually  avoids  a  deed  of  bargain  and  sale  made  in  infancy; 

1  Irvine  v.  Irvine,  9  Wall.  617.     And  see  Phillips  v.  Green,  5  Monr.  844; 
Scott  V.  Buchanan,  11  Humph.  468;  Houser  i;.  Rej-nokls,  1  Hayw.  143. 

2  Thompson  v.  Gaillard,  3  Rich.  418.     See  Jackson  v.  Todd,  6  Johns.  257  ; 
Hall  V.  Jones,  21  Md.  439. 

3  Wallace  v.  Lewis,  4  Harring.  75. 

*  Jackson  v.  Carpenter,  11  Johns.  539 ;  Jackson  v.  Burchin,  14  Johns.  124. 
See  Met.  Contr.  44,  45,  where  this  subject  is  discussed. 
5  Tucker  v.  Moreland,  10  Pet.  58,  per  Story,  J. 

[626  J 


RATIFICATION  AND   AVOIDANCE   OF   CONTRACTS.    *  587 

and  this  without  entry  on  his  part.^  But  the  New  York  courts 
have  latterly  been  disposed  to  retrace  their  steps  ;  reluctance 
to  do  injury  to  others,  doubtless,  contributing  to  increase  the 
strictness  of  requirements  on  the  infant's  part.  Their  present 
rule  appears  to  be  that,  unless  the  lands  were  wholly  vacant, 
or  the  infant  remained  in  possession,  he  must  make  an  entry 
or  do  some  other  act  of  equal  notoriety  before  he  can  pass 
title  by  a  second  conveyance.^  There  is  no  authority  in  the 
New  England  States  to  oppose  this  later  doctrine  ;  nor  do  we 
find  any  in  the  other  Middle  States.^  But  doubt  is  removed 
by  statutes,  in  Maine,  Massachusetts,  and  some  other  States, 
which  permit  parties  to  recover  land  by  writ  of  entry 
without  making  actual  entry.  And  it  is  held  in  *  Maine  *  588 
that  such  a  writ  dispenses  with  entry  and  amounts  to 
disaffirmance.'^ 

If  an  infant  contract  to  sell  real  estate  he  cannot  be  held  to 
the  agreement  after  attaining  majority  upon  refusal  to  sanc- 
tion it.^  And  a  bill  to  enforce  specific  performance  should 
not  be  brought  before  a  reasonable  time  has  elapsed  after  the 
infant  attains  majority  for  him  to  affirm  or  disaffirm.^  But  it 
is  held  that  acquiescing  in  the  settlement  of  boundaries  after 
coming  of  age  binds  the  infant.'^ 

To  render  a  subsequent  conveyance  an  ac't  of  dissent  to  the 
prior  conveyance  of  an  infant,  it  must  be  inconsistent  there- 
with, so  that  the  two  cannot  stand  together.^     And  it  is  held 

1  Hoyle  V.  Stowe,  2  Dev.  &  Bat.  320 ;  Pitcher  v.  Laycock,  7  Ind.  398  ;  Mc- 
Gan  V.  Marshall,  7  Humph.  121 ;  Hughes  v.  Watson,  10  Ohio,  127  ;  Peterson  v. 
Laik,  24  Mis.  541. 

^  Dominick  v.  Michael,  4  Sandf.  421 ;  Bool  v.  Mix,  17  Wend.  133  ;  Voorhies 
V.  Voorhies,  24  Barb.  150. 

5  See  Roberts  i'.  Wiggin,  1  N.  H.  75  ;  Worcester  v.  Eaton,  13  Mass.  375.  See 
also  Harrison  v.  Adcock,  8  Geo.  68 ;  Moore  r.  Abernethy,  7  Blackf.  442. 

*  Chadbourne  v.  Kacklift;  30  Me.  354.  And  see  Cole  v.  Pennoyer,  14  111.  158. 
Mr.  Metcalf  appears  to  doubt  tlie  correctness  of  the  rule  in  Jackson  v.  Carpen- 
ter, even  as  to  cases  of  wild  lands.     Sec  Met.  Contr.  45,  46,  and  cases  cited. 

5  Walker  v.  Ellis,  12  III.  470;  Petty  v.  Roberts,  7  Bush,  410.  Still  less  if 
fraud  were  practised  upon  him.     Griffis  v.  Younger,  6  Ired.  Eq.  520. 

*>  Carrell  v.  Potter,  23  Mich.  377.     As  to  the  ratification  necessary  to  allow  of 
enforcing  a  lien  on  real  estate  for  work  and  materials  furnished  dm-ing  infancy, 
see  McCarty  v.  Carter,  49  111.  53. 
■    ^  George  v.  Thomas,  16  Tex.  74. 

8  Leitensdorfer  v.  Hempstead,  18  Mis.  209  ;  McGan  v.  Marshall,  7  Humph.  121. 

[627] 


♦588  INFANCY. 

that  where  hind  was  conveyed  by  a  person  under  age  in 
exchange  for  other  lands,  and  he  after  coming  of  age  sells 
and  conveys  the  lands  so  received,  the  last  deed  amounts  to  a 
confirmation  of  the  first.^ 

The  same  reasoning  which  applies  to  property  transferred 
by  the  infant  applies  to  his  purchases.  If  an  infant,  for 
instance,  takes  a  conveyance  of  land  during  minority  and 
retains  possession  after  coming  to  majority,  circumstances 
may  make  that  a  binding  transaction.  So  if  an  infant  lessee 
remains  in  possession  of  the  house  or  land  demised,  and  pays 
rent  after  majority,  he  cannot  repudiate  the  lease  after- 
wards.2 

When  an  infant  purchases  property,  and  continues  to  enjoy 
the  use  of  the  same,  and  then  sells  it  or  any  part  of  it,  and 
receives  the  money  for  it,  he  must  be  considered  as  having 
elected  to  affirm  the  contract,  and  he  cannot  afterwards  avoid 
payment  of  the  consideration.^  Some  authorities  would  con- 
fine the  affirmation  of  a  purchase  of  land  to  an  actual  sub- 
sequent sale,  but  this  is  quite  unreasonable,  and  contrary  to 
the  general  doctrine  ;  for  there  may  be  many  other  acts 
which  constitute  just  as  full  and  undoubted  evidence  of  a 
design  on  the  infant's  part  to  affirm  such  contract  as  an  actual 
sale  of  the  land.  Thus  continuous  occupation  of  premises, 
improvements,  and  offers  to  sell,  have  sometimes  been  deemed 
sufficient.^  And  Chief  Justice  Shaw  observes  that  if  an 
infant,  after  coming  of  age,  retains  landed  property 
*  589  purchased  by  him  during  minority  for  his  own  *  use, 
or  sells  or  otherwise  disposes  of  it,  such  acts  being 
only  conscientiousl}^  done  with  intent  to  ratify  or  affirm, 
affirmation  or  ratification  may  be  inferred.^  The  same  prin- 
ciple has  been  declared  in  other  cases,  even  to  the  extent  of 
holding  that  mere  continuance  in  possession  is  an  affirmance  ; 

1  Williams  v.  Mabee,  3  Halst.  Ch.  500. 

2  Holmes  v.  Blogg,  8  Taunt.  85 ;  Smith  Contr.  284 ;  Bac.  Abr.  tit.  Infant,  K. 
612;  Baxter  v.  Bush,  29  Vt.  465;  Armfield  v.  Tate,  7  Ired.  258. 

3  BoDily  V.  McKennej,  10  Shep.  517  ;  Hubbard  v.  Cummings,  1  Me.  11 ;  Boy- 
den  V.  Boyden,  9  Met.  519  ;  Robbins  v.  Eaton,  10  N.  H.  561. 

*  See  Kobbins  ;;.  Eaton,  10  N.  H.  561. 
'  See  Boyden  v.  Boyden,  supra. 

[  628] 


EATIFICATION  AND  AVOIDANCE  OF  CONTRACTS.    *  589 

the  more  so,  if  the  late  infant  has  put  it  out  of  his  power  to 
restore  the  title. ^  It  Avill  be  ob-erved  that  such  latter  con- 
duct involves  two  elements :  lapse  of  time  and  the  exercise 
of  acts  of  ownership. 

This  rule  was  applied  in  a  recent  well-considered  New  York 
case,  upon  a  full  examination  of  the  authorities.  An  infant 
had  given  his  note  for  certain  real  estate  ;  and,  very  foolishly, 
or  very  dishonorably,  endeavored  to  avoid  payment  upon 
majorit3^  while  holding  to  the  benefits  of  his  purchase.  It 
was  held  that  by  his  acts  he  had  ratified  the  contract  of  pur- 
chase.^ 

Since  a  married  woman  conveys  her  lands,  by  force  of 
statute  provisions,  perplexing  questions  may  arise  as  to  the 
effect  of  a  conveyance  executed  in  conformity  with  late  acts, 
yet  ineffectual  because  of  her  infancy.^  It  would  appear 
from  some  late  American  cases,  that  the  wife  still  continuing 
covert  after  becoming  of  age,  acts  which  might  constitute 
ratification  in  ordinary  cases  may  not  always  be  set  up  against 
her.'*  But  a  married  woman  is  sometimes  estopped  by  her 
own  acts ;  as  in  a  case  where  her  equitable  interest  in  land 
was  sold  while  she  was  a  minor,  together  with  the  interests 
of  adult  parties,  and  she  received  her  share  of  the  proceeds 
some  years  after  attaining  majority.^ 

By  a  well-known  rule  of  equity,  the  proceeds  of 
lands  sold  *  during  minority  retain  the  character  of  *  590 
real  estate.  And  such  property  remains  real  and  not 
personal,  even  after  the  infant  attains  majority,  so  long  as 
there  is  no  act  or  intent  on  hi  ^  part  to  change  its  character ;  ** 
but  the  character  ceases  when  he  attains  majorit}'-,  and  obtains 
possession  of  the  proceeds.^ 

1  Dana  v.  Coombs,  6  Greenl.  89  ;  Cheshire  v.  Barrett,  4  M'Cord,  241 ;  Lynde 
V.  Bud  I,  2  Page,  191  ;  Middleton  v.  Hoge,  5  Busli,  478. 

2  Henry  i'.  Root,  33  N.  Y.  526.  ^  Harbman  v.  Kendall,  4  Ind.  403. 

i  Matlierson  v.  Davis,  2  Cold.  443  ;  Miles  v.  Lingerman,  24  Ind.  385.  This 
subject  appears  to  have  received  little  attention  as  yet  ;  but  tiie  equity  doctrine, 
to  argue  from  the  case  of  marriage  settlements,  appears  to  be  that  the  wife  may 
by  acts  give  validity  to  such  deeds,  after  attaining  full  age  and  notwithstanding 
her  coverture.     See  supra,  cli.  1. 

5  Anderson  v.  Mather,  44  N.  Y.  249.  And  see  Sclimitheimer  v.  Eiseman,  7 
Bush,  298. 

6  Foreman  v.  Foreman,  7  Barb.  215.  "^  Forraan  v.  Marsh,  1  Kern.  544, 

[629] 


♦590  INFANCY. 

Where  a  new  promise  is  requisite  on  reaching  majority,  it 
must  be  made  to  the  party  with  whom  the  infant  contracted, 
or  to  his  agent  or  attorney  ;  not  to  a  stranger.^  But  a  promise 
to  an  agent  authorized  to  present  the  claim  and  receive  pay- 
ment and  give  discharge,  binds  him  lately  an  infant.^  And 
where  a  writing  addressed  to  another  than  the  plaintiff  is 
relied  on,  not  as  constituting  a  ratification  or  containing  a 
promise,  but  as  evidence  of  a  ratification  previously  made  by 
the  defendant,  it  is  held  admissible  in  the  plaintiff's  favor.^ 
Nor  is  it  necessary  that  the  agent  should  have  disclosed  his 
authority  before  the  defendant  made  his  admission.'^  So,  too, 
wliile  an  infant,  or  one  in  priority  with  him,  may  object  to  a 
contract  on  the  ground  that  it  was  not  for  his  benefit,  a  third 
person,  a  stranger,  has  no  right  to  say  that  the  infant  may  not 
make  or  assume  what  contract  he  pleases.^ 

It  is  not  essential  to  a  valid  ratification  that  the  person 
lately  an  infant  should  know  that  he  was  not  legally  liable  on 
his  contract  made  during  infancy.^  Ignorance  of  the  law 
excuses  no  one.  But  there  is  a  dictum  of  Lord  Alvanley  to 
the  contrary,  which  has  been  frequently  repeated  in  Amer- 
ican courts,  and  once  constituted  the  basis  of  a  decision  in 
Pennsylvania.'^ 

*  591  *  An  infant  upon  reaching  majority,  who  chooses  to 
disaffirm  a  sale  of  his  real  estate,  not  made  in  accord- 
ance with  law,  may  do  so,  without  first  refunding,  or  offer- 
ing to  refund,  the  purchase-money.  This  is  declared  in 
several  cases.^  But  the  principle  is  firmly  established  by  the 
courts  that  he  cannot  on  attaining  full  age  hold  to  the  pur- 
chase, and  thus  affirm  that,  while  pleading  his  infancy  to 

I  Bicjelow  V.  Grannis,  2  Hill,  120;  Goodsell  v.  Myers,  3  Wend.  479. 

-'  Mayer  v.  McLiire,  30  Miss.  389. 

3  Stern  v.  Freeman,  4  Met.  (Ky.)  309. 

*  Hoit  V.  Underliill,  10  N.  11.  220.    And  see  Tate  v.  Tate,  1  Dev.  &  Bat.  22. 

5  See  Douglas  i-.  W.atson,  34  E  L.  &  Eq.  447. 

6  Morse  v.  Wheeler,  4  Allen,  570;  Met.  Contr.  59. 

T  Harmer  i;.  Killing,  5  Esp.  103  ;  Hinely  v.  Margaritz,  3  Barr,  428.  See  Cur- 
tis r.  Patton,  11  S.  &  R.  305;  Keed  v.  Bosliears,  4  Sneed,  118;  Norris  v.  Vance, 
3  rxich.  164. 

8  Pitcher  v.  Laycock,  7  Ind.  398 ;  Cresinger  v.  Welch,  15  Ohio,  156  ;  Miles  v. 
Lingerman,  24  Ind.  385.    But  see  Stuart  v.  Baker,  17  Tex.  417. 

[  630] 


RATIFICATION  AND   AVOIDANCE   OF   CONTRACTS.    *  591 

avoid  the  payment  of  the  purchase-money .1  He  must  refund 
the  purchase-money  if  he  seeks  to  avoid  the  sale.  He  must, 
sooner  or  later,  place  the  original  purchaser  in  statu  quo  ;  this 
common  honesty,  as  well  as  the  law,  demands.  For  this  pur- 
pose the  purchaser  may  bring  suit.  And  the  same  principle 
applies  alike  to  property  real  or  personal. 

So  if  an  infant  sell  goods  and  receive  the  money  for  them, 
he  cannot  recover  back  the  goods  without  returning  the 
money.2  Nor  damage  property  he  has  received,  and  then 
demand  the  full  price  on  offering  to  restore  it.^  Nor  recover 
partnership  property  after  rescinding  the  partnership  agree- 
ment, so  as  to  prejudice  liabilities  of  the  firm  which  are 
outstanding.*  If  the  former  vendee  be  sued  for  use  and  occu- 
pation of  land,  it  is  held  that  he  may  recoup  for  valuable 
improvements;  and  equity  favors  a  fair  adjustment  of  rents, 
damages,  and  improvements.^  The  plea  of  false  warranty 
may  sometimes  be  set  up  against  the  infant's  attempt  T)y 
affirmance  to  enforce  a  hard  bargain.^  To  multiply  these 
illustrations  is  unnecessary ;  the  cardinal  principle  which 
runs  through  them  all  is  that  substantial  justice  should  be 
done,  if  possible,  between  the  two  parties  to  a  contract. 

1  Kline  v.  Beall,  6  Conn.  494  ;  Bailey  v.  Bamberger,  11  B.  Monr.  113  ;  Strain 
V.  AVright,  7  Geo.  568;  Hillyer  v.  Bennett,  ?>  Edvv.  Cli.  222;  Lowry  v.  Drake,  1 
Dana,  46  ;  Kitchen  v.  Lee,  11  Paige,  107  ;  Tipton  v.  Tipton,  3  Jones,  552;  Wo- 
mack  V.  Woraack,  8  Te.x.  397;  Smith  v.  Evans,  5  Humph.  70;  Manning  v. 
Johnson,  26  Ala.  446 ;  Wilie  v.  Brooks,  45  Miss.  542 ;  Kerr  v.  Boll,  44  Mis.  120. 

2  Badger  v.  Phinney,  15  Mass.  359  ;  Bartholemew  v.  Finnemore,  17  Barb. 
428. 

3  Carr  v.  Clough,  6  Fost  280  ;  Bartholemew  v.  Finnemore,  supra. 

4  Furlong  v.  Bartlett,  21  Pick.  401 ;  Sadler  v.  Robinson,  2  Stew.  520  ;  Kinnen 
V.  Maxwell,  66  N.  C.  45. 

5  Weaver  v.  Jones,  24  Ala.  420;  Petty  i\  Roberts,  7  Bush,  410. 

6  Morrill  v.  Aden,  19  Vt.  505.  And  see  Heath  v.  West,  8  Fost.  101  ;  Ship- 
man  V.  Horton,  17  Conn.  481 ;  Edgarton  v.  Wolf,  6  Gray,  453. 


[631] 


*  592  INFANCY. 


*592  *  CHAPTER  VI. 

ACTIONS   BY   AND   AGAINST   INFANTS. 

I.  It  is  a  fundamental  principle  that  the  rights  of  property- 
shall  vest  in  infants,  notwithstanding  their  tender  years  ;  and 
incidentally  thereto  they  have  the  right  of  action.  Yet,  it  is 
clear  that  if  the  infant  be  unfit  to  make  a  contract  he  is  unfit 
to  sue  on  his  own  behalf.  Hence  is  the  rule  that  while  pro- 
cess is  sued  out  in  the  infant's  own  name,  it  is  in  his  name  by 
another  ;  that  is  to  say,  some  person  of  full  age  must  conduct 
the  suit  for  him.  The  same  jDrinciple  applies  to  all  civil 
actions,  whether  founded  on  a  contract  or  not. 

At  common  law,  infants  could  neither  sue  nor  defend, 
except  by  guardian.  They  were  authorized,  by  Stat.  Westm. 
1,  to  sue  hy  pi'ochein  ami  (or  next  friend)  against  the  guardian 
in  chivalry  who  had  aliened  any  portion  of  the  infant's 
inheritance.^  Stat.  Westm.  2,  c.  15,  extended  this  privilege 
to  all  other  cases  where  they  could  not  sue  formally.  Lord 
Coke  lays  down  that,  since  these  statutes,  the  infant  shall  sue 
hy  pro chein  ami  and  defend  by  guardian.^  And  Fitzherbert 
is  to  the  same  effect.^  But  Mr.  Hargrave  thinks  it  probable 
that  Fitzherbert  and  Lord  Coke  did  not  mean  to  exclude  the 
election  of  suing  either  by  prochein  ami  or  by  guardian.^ 
And  whether  they  did  or  not,  guardianship  at  the  present 
day,  so  unlike  guardianship  as  they  understood  it,  justifies 
the  modern  practice ;  which  is  to  ajopoint  a  special  jDcrson  as 
prochein  ami  only  in  case  of  necessity,  where  an  infant 
*  593  is  to  sue  his  guardian,  or  the  *  guardian  will  not  sue 
for  him,  or  it  is  imjjrojDcr  that  the  guardian  should  be 
the  prochein  ami.     In  other  cases,  the  rule  is  to  sue  by  guar- 

1  Macphers.  Inf.  13,  352. 

2  2  Inst.  261,  390;  Co.  Litt.  135  6;  3  Robin»3on's  Pract.  229. 

3  F.  N.  B.  [27]  H.  <  Harg.  n.  Co.  Lit:.  135  b. 

[632] 


ACTIONS  BY  AND  AGAINST  INFANTS.       *  593 

dian  or  procJmn  ami}  But  an  infant  may  sue  by  his  next 
friend  though  he  have  a  guardian,  if  the  guardian  does  not 
dissent.2  And  in  some  States  the  choice  allowed  the  infant 
is  still  more  liberal.^  Not  unfrequently,  too,  the  next  friend 
who  brought  the  suit  is  removed  and  another  appointed,  on 
the  ground  that  it  is  for  the  infant's  benefit.* 

An  infant  cannot  prosecute  an  action  either  in  person  or  by 
attorney.  This  is  well  settled.^  But  advantage  must  be 
taken  by  plea  in  abatement  of  the  infant's  suing  by  attorney, 
or  by  application  to  a  judge,  or  the  court,  for  it  is  not  error 
after  judgment  either  on  verdict  or  by  default.^  The  same 
rules  are  frequently  applied  to  a  parent  who  sues  on  behalf  of 
minor  children,  but  not  as  guardian  or  next  friend.  Where 
infancy  of  the  plaintiff  is  pleaded  in  abatement  to  a  suit 
brought  by  a  minor  in  his  own  name  without  any  guardian  or 
next  friend,  the  court  may  allow  the  infant  to  amend  by  in- 
serting in  his  writ  that  he  sues  by  A.,  his  next  friend."  Nor 
does  this  rule  deprive  the  infant  of  the  professional  services 
of  an  attorney ;  it  relates  to  the  parties  to  the  suit.^ 

Generally  speaking,  Avhen  an  action  is  brought  by  an  infant, 
he  sues  in  his  own  name  by  a  certain  person  as  next  friend. 
A  prochein  ami,  commencing  his  authority  with  the  writ  and 
declaration,  can  only  maintain  the  suit  for  such  causes  of 
action  as  may  be  prosecuted  without  special  demand  ;  as  for 
personal  injuries  done  to  the  infant,  or  for  sums  of  money 

1  Claridge  v.  Crawford,  1  Dowl.  &  Ky.  13;  3  Robinson's  Pract.  230; 
Younge  v.  Younge,  Cro.  Car.  86 ;  Goodwin  v.  IMoore,  Cro.  Car.  161 ;  Aptliorp  v. 
Backus,  Kirby,  407 ;  M'Giffin  v.  Stout,  Coxe,  92 ;  Blackman  v.  Davis,  42  Ala. 
184. 

2  Thomas  v.  Dike,  11  Vt.  273;  Robson  v.  Osborn,  13  Tex.  298. 

3  Hooks  V.  Smith,  18  Ala.  338. 

*  Barwick  v.  Rackley,  45  Ala.  215 ;  Martin  v.  Weyman,  26  Tex.  400  ;  Mills  »•. 
Humes,  22  Md.  346. 

5  Cro.  Eliz.  424  ;  Cro.  Jac.  5  ;  1  Co.  Litt.  135  b,  Harg.  n.,  220;  Miles  v.  Boy- 
den,  3  Pick.  213  ;  Clark  r.  Turner,  1  Root,  200  ;  Mockey  v.  Grey,  2  Johns.  VX2 ; 
Timmons  v.  Timmons,  6  Ind.  8;  Nicholson  v.  Wilborn,  13  Geo.  467. 

6  2  Saund.  Pleading,  207  ;  Bird  v.  Pegg,  5  B.  &  Aid.  418  ;  Finley  v.  Jowie,  13 
East,  6 ;  Apthorp  v.  Backus,  Kirby,  407.  But  as  to  the  infant  himself,  see  Bird 
r.  Pegg ;  Jones  v.  Steele,  36  Mis.  324. 

'  Blood  V.  Harrington,  8  Pick.  5-52. 

8  People  V.  New  York  C.  P.,  11  Wend.  164. 

[633] 


*  593  INFANCY. 

where  the  writ  itself  is  considered  as  the  demand.^     In  Eng- 
land, it  was  once  considered  that  the  special  admission 

*  594    of  a  guardian  for  an  *  infant  to  appear  in  one  case 

would  serve  for  others.^  But  the  modern  rule  is  that 
the  special  admission  of  prochein  ami  or  guardian,  to  prosecute 
or  defend  for  an  infant,  shall  not  be  deemed  an  authority  to 
prosecute  or  defend  in  any  but  the  particular  action  specified.^ 
Sometimes  there  will  be  an  advantage  in  suing  by  guardian  if 
this  can  legally  be  done.* 

The  guardian,  like  the  prochein  ami^  is,  in  English  practice, 
aj^pointed  by  the  court  before  the  plaintiff  can  proceed  in  the 
action,  and  no  legal  right  of  parentage  or  of  guardianship  will 
enable  any  one  to  act  for  the  infant  without  such  appoint- 
ment.^ But  where  the  infant's  father  being  a  necessary 
witness,  could  not  properly  be  procliein  ami  in  a  certain  suit, 
the  court,  on  motion,  appointed  a  friend  of  the  family  with 
the  father's  concurrence.^  No  authority  from  the  infant 
to  the  guardian  on  prochein  ami  to  sue  is  necessary,  though  the 
infant  be  on  the  very  eve  of  majority  ;  but  it  is  intimated 
that  the  court  might  interfere  if  fraud  was  shown.'''  As  the 
23rochein  ami  is  an  officer  of  the  court,  if  the  infant  wishes 
him  removed  he  must  apply  to  the  court  for  that  purpose,  and 
an  entry  of  the  change  should  be  made  of  record.^  But  on 
the  plaintiff  coming  of  age,  he  may,  it  seems,  remove  the 
prochein  ami  of  his  own  authority,  and  appear  thereafter  by 
his  own  attorney.^ 

But  while,  in  theory,  the  prochein  ami  is  still  legally  ap- 
pointed by  the  court,  such  formalities  are  now,  in  practice, 
very  generally  waived.  In  Connecticut,  Massachusetts,  Vir- 
ginia, and  other  States,  no  entry  of  record  is  requisite  admit- 
ting a  person  to  sue  as  guardian  or  next  friend,  the  recital  in 
the  writ  and  count  beinsT  deemed  sufficient  evidence  of  admis- 


i  Miles  V.  Boyden,  3  Pick.  219.  2  Archer  v.  Frowde,  1  Stra.  304. 

3  2  Saund.  Plead.  207  ;  Macphers.  Inf.  353. 

4  3  Robinson's  Pract.  229.  *  Macphers.  Inf.  353. 
6  Claridge  v.  Crawford,  1  Dovvl.  &  Ry.  13. 

"  Morgan  v.  Thorne,  9  Dowl.  228.     Aiid  see  Barwick  v.  Rackley,  45  Ala.  215. 

8  Davies  v.  Locket,  4  Taunt.  705  ;  Morgan  v.  Thorne,  supra. 

9  See  Bac.  Abr.  Infant,  K.  2. 

[  634  ] 


ACTIONS  BY  AND  AGAINST  INFANTS.       *  594 

sion  unless  seasonably  challeng-ed  by  the  opposite  party, 
when  the  order  may  be  *supplied.i  In  New  York,  on  *  595 
the  other  hand,  a  j^rochein  ami  must  be  appointed  for 
the  infant  plaintiff  before  process  is  sued  out  ;  and  such 
is  the  practice  in  some  other  parts  of  this  country .^  In  some 
States  it  is  deemed  proper  to  prove  infancy,  and  hence  the 
right  to  sue  by  next  friend.^ 

So,  too,  in  this  country,  more  deference  seems  to  be  shown 
to  the  infant's  wishes  than  in  England.  Thus,  in  Massachu- 
setts, the  court  on  the  personal  petition  of  a  minor,  twenty 
years  of  age,  withdrew  the  authority  of  the  prochein  ami,  and 
ordered  all  further  proceedings  in  the  suit  postponed  until  the 
minor  should  attain  full  years.^  In  the  choice  of  a  guardian 
and  prochein  ami,  a  minor  above  fourteen  has  much  latitude 
of  discretion  ;  and  when  he  attains  full  age  he  may  enter  the 
fact  upon  record,  and  without  further  formality  proceed  to 
conduct  the  suit  for  himself.^ 

Where  an  infant  has  brought  an  action  by  his  next  friend, 
and  has  recovered  damages  which  have  been  received  by  the 
attorney,  the  money  is  the  money  of  the  infant,  and  he  may 
sue  the  attorney  for  it.*^ 

A  prochein  ami  is  liable  for  costs,  and  the  remedy  is  against 
him  for  attachment,  which  should  be  absolute  in  the  first 
instance.^  This  is  the  English  practice.  It  Avould  appear 
that  execution  cannot  issue  against  the  infant  himself ;  and 
this  from  the  very  circumstance  that  the  next  friend  is,  in 
theory,  one  who  comes  forward  to  assume  all  such  liabilities.^ 

1  See  Guild  v.  Cranston,  8  Cusli.  506 ;  Boynton  v.  Clay,  58  Me.  236  ;  Bur- 
well  V.  Corbin,  1  Rand.  151  ;  3  Bobinson's  Tract.  230 ;  Trask  v.  Stone,  7  Mass. 
241  ;  Judson  i-.  Blancliard,  3  Conn.  o7».    And  see  Stumps  v.  Kelley,  22  111.  140. 

■J  Wilder  v.  Ember,  12  Wend.  191  ;  Haines  v.  Oatman,  2  Doug.  480 ;  Grant- 
man  V.  Tiirall,  44  Barb.  173. 

3  Byers  v.  Des  Moines,  &c.,  B   R.  Co.,  21  Iowa,  54. 

4  Guild  V.  Cranston,  8  Cush.  506. 

5  Clark  V.  Watson,  2  Ind.  399  ;  Sluittlcsworth  r.  Ilugliey,  6  Bich.  329. 

6  Collins  V.  Brook,  4  Hurl.  &  Nor.  276.     And  see  Smith  v.  Bedus,  9  Ala.  99. 

1  Newton  v.  London,  Brighton,  &c.,  B.  R.  Co.,  7  Dow.  &  L.  328  (1849) ;  Dow 
V.  Clark,  2  Dowl.  302.     See  Price  v.  Duggan,  4  Man.  &  Gr.  225. 

8  lb. .  Stephenson  v.  Stephenson,  3  Hey.  123  ;  Berryman  v.  Burgstcr,  6  Port, 
f  Ala.)  199  ;  Sproule  v.  Botts,  5  J.  J.  Marsh.  162.  But  see  Proudfoot  v.  Poile,  3 
Dow.  &  L.  524;  Macphers.  Inf.  356,  35",  and  cases  cited.  As  to  practice  under 
New  York  code,  see  Linner  v.  Crouse,  61  Barb.  289. 

[  635  ] 


*595  INFANCY. 

But  in  conformity  with  statutes  in  Massachusetts,  it  is 
*  596    held  that  a  *  prochein  ami,  as  such,  is  not  liable  for 

costs  ;  ^  nor  does  he  seem  to  be  always  strictly  con- 
sidered in  our  courts  a  party  to  the  suit ;  ^  and  the  infant 
plaintiff  is  made  liable  for  his  own  costs.^ 

II.  An  infant  can  appear  and  defend  in  civil  suits  by  guar- 
dian only,  and  not  by  attorney,  or  in  person.*  The  process  is 
the  same  against  an  infant  as  in  ordinary  cases ;  but  he  needs 
some  one  to  conduct  his  defence,  and  hence  every  court, 
wherein  an  infant  is  sued,  has  power  to  appoint  a  guardian 
ad  litem,  for  the  special  purposes  of  the  suit,  since  otherwise 
he  might  be  without  assistance.^ 

A  guardian  ad  litem  is  one  appointed  for  the  infant  to 
defend  in  the  particular  action  brought  against  him,  and  is 
therefore  to  be  distinguished  from  guardians  of  the  person 
and  estate.^  If  there  be  a  general  chancery,  probate,  or  tes- 
tamentary guardian  already  appointed,  it  is  his  place  to  de- 
fend the  infant  from  all  suits,  so  long  as  his  authority  over 
the  infant's  property  continues  ;  this  being,  however,  a  matter 
usually  regulated  in  this  country  by  statute.' 

What  has  been  observed  of  the  appointment  of  j^roehein 
ami  may  be  said,  in  general,  of  that  of  the  guardian  ad  litem. 
The  two  correspond,  and  the  principles  of  law  applicable  to 
the  one  are  in  general  to  be  applied  to  the  other.^  In  a 
criminal  case  no  guardian  ad  litem  is  appointed.  But  in  a 
civil  case,  proceedings  against  an  infant  are  liable  to  be  re- 
versed and  set  aside  for  irregularity,  where  no  guardian  ad 
litem  has  been  appointed  for  him,  unless,  perhaps,  his  regular 
guardian  has  appeared  in  his  defence  ;  and  process  must,  be- 
sides, have  been  first  regularly  served  upon  the  infant ;  though 

>  Crandall  i-.  Slaid,  11  Met.  288.  '^  Brown  v.  Hull,  16  Vt.  673. 

3  Ilowett  I'.  Alexanrler,  1  Dev.  431 ;  Smith  v.  Floyd,  1  Pick.  275. 

*  Co.  Litt.  88  b,  n.  16,  135  b;  2  Stra.  784  ;  Macphers.  Inf.  358;  Alderman  v. 
Tirrell,  8  Johns.  418 ;  Knapp  v.  Crosby,  1  Mass.  479  ;  Miles  v.  Boyden,  3  Pick. 
21y  ;  Bedell  v.  Lewis,  4  J.  J.  Marsh.  562;  Starbird  v.  Moore,  21  Vt.  529. 

5  Bac.  Abr.  Guardian,  B.  4. 

6  Larkin  v.  Mann,  2  Paige,  27  ;  Koberts  v.  Stanton,  2  Munf.  129;  Bac.  Abr. 
Guardian,  supra,  cases  cited  by  Bouvier. 

"i  See  Hughes  v.  Seller,  34  Ind.  337.  8  See  Macphers.  Inf.  358. 


ACTIONS  BY  AND  AGAINST  INFANTS.       *  596 

in  this  latter  respect  the  rule  of  the  several  States  is  not  iini- 
form.i  Irregularities  of  procedure  are  often  cured  by  the 
judgment ;  and  lapse  of  time  and  laches  on  the  part  of  an 
infant  after  reaching  majority,  may  leave  him  altogether  with- 
out an  opportunity  to  set  the  judgment  aside,  as  in  the  case 
of  his  voidable  transactions.^ 

The  writ  and  declaration  in  actions  at  law  against  infants 
are  to  be  made  out  as  in  ordinar}^  cases.  In  English  practice, 
where  the  defendant  neglects  to  appear,  or  appears 
otherwise  *  than  by  guardian,  the  plaintiff  may  apply  *  597 
for  and  obtain  a  summons,  calling  on  him  to  appear  by 
guardian  within  a  given  time  ;  otherwise  the  plaintiff  may  be 
at  liberty  to  proceed  as  in  other  cases,  having  had  a  nominal 
guardian  assigned  to  the  infant.^  A  like  rule  prevails  in  New 
York  and  other  States.^  Courts  will  go  so  far  to  protect  an 
infant  as  to  see  that  process  is  properly  served,  a  guardian 
ad  litem  appointed  for  him,  and  the  formal  answer  filed.° 

Infancy  may  be  specially  pleaded  in  bar.^  The  plaintiff  re- 
plies either  that  the  defendant  was  of  age  or  that  the  goods 
were  necessaries,  or  that  he  confirmed  the  contract  Avhen  he 
came  of  age.  If  there  be  several  defendants,  the  party  who  is 
a  minor  should  plead  his  infancy  separatel3\  Infancy  is  an 
issuable  plea  ;  and  it  may  be  pleaded  with  other  pleas  witliout 
leave  of  court."  Where  there  are  several  issues,  one  of  which 
is  upon  the  plea  of  infancy,  that  being  found  for  the  infant, 
the  whole  case  is  disposed  of.^  In  New  York,  infancy  may  be 
given  in  evidence  under  the  general  issue.^ 

1  See  Abflil  v.  Abdil,  26  Ind.  287  ;  Jiirman  v.  Lucas,  15  C.  B.  k.  8.  474  ; 
Frierson  v.  Travis,  3'.)  Ala.  150.  In  some  States,  it  is  required  by  statute  tiiat 
process  shall  be  served  upon  the  infant  defendant  personally,  also  upon  liis 
father,  mother,  or  guardian.     Ingersoll  v.  Ingersoll,  42  Miss.  15-5. 

-  See  Townsend  v.  Co.x,  4.5  Mis.  401  ;  Barnard  v.  Hoydrick,  49  Barb.  62 ; 
McMurray  ;•.  MoMurray,  60  Barb.  117. 

'  See  Macphers.  Inf.  859. 

*  Van  Deuscn  v.  Brower,  6  Cow.  50;  Judson  v.  Storer,  2  South.  644;  Clarke 
V.  Gilmanton,  12  N.  H.  515. 

5  Alexander  v.  Frary,  9  Ind.  481. 

6  Clemson  v.  Bush,  3  Binn.  413;  Hillegass  v.  Hillegass,  5  Barr,  97. 

7  15  &  16  Vict.  c.  76,  §  84.  See  Delafield  v.  Tanner,  5  Taunt.  856 ;  Dublin 
&  Wicklow  R.  R.  Co.  i;.  Black,  8  E.vth.  181. 

^  Rohrer  i'.  MorningstJir,  18  Ohio,  679. 
9  Wailing  v.  Toll,  9  Johns.  141. 

[637] 


*  597  INFANCY. 

An  infant  defendant  is  liable  to  costs  in  the  same  manner 
as  any  other  defendant,  notwithstanding  he  has  a  guardian.^ 
Macpherson  says  that  the  guardian  of  an  infant  defendant  is 
subject  to  the  same  Uability  for  costs  as  the  'procliein  ami,  or 
the  guardian  of  an  infant  plaintiff.^  No  authority  is  given  for 
this  statement,  and  it  seems  that  the  guardian  of  an  infant 
defendant  is  not  liable.^ 

If  an  infant  comes  of  age  pending  the  suit,  he  can 

*  598    assert  his  *  rights  at  once  for  himself,  and  if  he  does 

not  he  cannot  generally  complain  of  the  acts  of  his 
guardian  ad   litem ^ 

III.  The  same  leading  principles  noticeable  in  suits  at  law 
are  to  be  recognized  in  equity  proceedings,  by  or  against  in- 
fants ;  and  the  doctrines  of  next  friend  and  guardian  ad  litem 
receive  ample  discussion  in  the  chancery  courts.^ 

Among  the  miscellaneous  matters  of  chancery  practice  re- 
lating to  infants  may  be  mentioned  proceedings  in  partition, 
orders  for  maintenance  and  education,  the  management  of 
trust  funds  by  guardians  and  other  trustees,  and  the  award 
of  custody.  These  subjects  have  already  been  incidentally 
considered  in  the  course  of  this  treatise.  And  we  need  only 
add  that  in  the  appointment  of  guardians  ad  litem,  courts  of 
chancery  will  exercise  a  liberal  discretion ;  that  in  all  pro- 
ceedings of  this  character,  the  appointment  of  a  guardian  ad 
litem  to  appear  in  behalf  of  infants  interested  in  the  proceed- 
ings is  regarded  as  proper  and  even  necessary,  when  they  have 
no  general  guardian  ;  that  personal  service  upon  the  infants, 
besides,  is  usually  requisite  ;  and  that  a  decree  rendered 
without  observance  of  such  formalities  may  be  reversed  for 
error.^   It  is  the  rule  in  many  States,  as  it  was  the  old  practice 

1  Anderson  v.  Warde,  Dyer,  104 ;  Gardiner  v.  Holt,  Stra.  1217. 

2  Macphers.  Inf.  361. 

3  See  Ferryman  v.  Burgster,  6  Port.  (Ala.)  199. 

4  Mitchell  V.  Berry,  1  Met.  (Ky.)  602.  And  see  Marshall  v.  Wing,  50  Me.  62; 
Stupp  V.  Holmes,  48  Mis.  89. 

5  See  1  Daniell  Ch.  PI.  3d  Am.  ed.  6-5  et  seq. ;  ib.  1.50  et  seq.,  where  the  Eng- 
lish and  American  authorities  are  very  fully  cited. 

6  lb.  And  see  Rhett  v.  Martin,  43  Ala.  86 ;  Girty  v.  Logan,  6  Bush,  8 ; 
Rhoads  v.  Rhoads,  43  111.  239 ;  Swain  v.  Fidelity  Ins.  Co.,  54  Penn.  St.  455  ;  Ivey 
V.  Ingram,  4  Cold.  129. 

[  638  ] 


ACTIONS   BY  AND   AGAINST   INFANTS.  *  598 

in  chancery,  to  allow  an  infant  his  day,  after  he  attains  majority, 
to  set  aside  a  decree  against  him  ;  thus,  in  effect,  rendering 
such  decrees  in  chancery  voidable  rather  than  binding,  so  far 
as  he  is  concerned,  and  treating  him  more  than  ever  upon  the 
footing  of  a  privileged  person ;  ^  for  it  is  not  too  much  to  say 
that  at  all  times  and  under  all  circumstances  infants  are 
especial  favorites  of  our   law. 

1  Simpson  v.  Alexander,  6  Cold.  619  ;  Kuclienbeiser  v.  Beckert,  41  111.  173  ; 
1  Daniell  Ch.  PI.  3d  Am.  ed.  71,  167. 


[  639] 


*599  MASTER  AND   SERVANT. 


i99  *PAET   VI. 

MASTER    AND     SERVANT. 


CHAPTER    I. 

NATURE  OF  THE  RELATION ;  HOW  CREATED  AND  HOW  TERMINATED. 

A  MASTER  is  one  who  has  legal  authority  over  another ;  and 
the  person  over  whom  such  authority  may  be  rightfully  exer- 
cised is  his  servant.  The  relation  of  master  and  servant  pre- 
supposes two  parties  who  stand  on  an  unequal  footing  in  their 
mutual  dealings ;  yet  not  naturally  so,  as  in  other  domestic 
relations,  nor  necessarily  because  the  subordinate  is  wanting 
in  either  years  or  discretion.  This  relation  is,  in  theory, 
hostile  to  the  genius  of  free  institutions.  It  bears  the  marks 
of  social  caste.  Hence  it  may  be  pronounced  as  a  relation 
of  more  general  importance  in  ancient  than  in  modern  times, 
and  better  applicable  at  this  day  to  English  than  American 
society. 

Master  and  servant  has,  nevertheless,  been  uniformly  re- 
garded as  one  of  the  domestic  relations.  In  lands  where 
human  slavery  is  lawfully  recognized,  it  is  pre-eminently  so  ; 
and  thus  were  its  foundations  deeply  laid  in  the  civil  law.  In 
the  early  days  of  the  common  law,  it  formed  a  distinct  part 
of  the  English  household  jurisprudence ;  and  in  a  state  of 
society  where  landed  proprietors  are  few  and  wealthy,  where 
rank  and  titles  are  maintained  with  ostentatious  display,  where 

the  humble  born  are  taught  to  obey,  rather  than  aspire, 
*  600    this  must  so  *  continue.     Not  only  cooks,  butlers,  and 

house-maids  are  thus  brought  within  the  scope  of  this 

[  640] 


NATURE   OF   THE   RELATION.  *  600 

relation,  but  farm-hands,  plantation  laborers,  stewards,  bailiffs, 
factors,  family  chaplains,  and  legal  advisers. 

Thus  is  explained  what  at  first  may  seem  an  anomaly, 
that  the  common  law,  under  the  head  of  master  and  servant, 
discusses  princiiDles  which,  in  this  day,  belong-  more  justly  to 
the  relation  of  principal  and  agent ;  and  that  we  constantly 
find  an  offensive  term  used  in  court  to  denote  duties  and 
obligations  which  rest  upon  the  pure  contract  of  hiring. 
Clerks,  salaried  officers,  brokers,  commission  merchants,  all 
are  designated  as  servants ;  and  our  topic  in  this  broad 
sense  is  not,  if  words  mean  any  thing,  within  the  influence 
of  the  domestic  law  at  all.  Nor  is  it  possible  to  extend 
the  lines  so  as  to  include  these  persons  without  abandoning 
consistency  of  purpose,  and  yielding  up  the  vital  princiiDle  of 
legal  classification. 

Were  the  writer  then  untrammelled  by  authority,  his  treat- 
ment of  this  topic,  as  one  of  the  domestic  relations,  would  be 
confined  to  what  are  denominated  at  common  law  menial  ser- 
vants, so  called  from  being  intra  mceyiia  ;  or  rather  to  domestic 
servants,  extending  the  definition  to  all  such  as  are  employed 
in  and  about  a  family  in  carrying  on  the  household  concerns, 
whether  their  occupations  be  within  or  without  of  doors,  so 
long  as  they  constitute  part  of  the  family.  In  this  restricted 
sense,  the  law  of  master  and  servant  is  manifestly  of  little 
importance  to-day.  But,  as  the  reader  may  have  perceived 
on  perusal  of  the  topic  of  guardian  and  ward,  legal  precision 
must  sometimes  be  sacrificed  to  legal  usage;  and  as  terms 
have  been  carried  in  both  instances  beyond  their  original 
signification,  for  the  sake  of  analogy,  we  are  bound  to  follow 
a  certain  distance,  even  though  it  be  into  logical  confusion. 

How  much  the  law  of  master  and  servant  is  understood  to 
mean,  may  be  gathered  from  the  books.  Blackstone  compre- 
hends under  this  head  slaves,  menial  servants,  appren- 
tices, *  hired  laborers,  and  servants  pro  tempore,  sucli  *  601 
as  stewards,  factors,  and  bailiffs,  and  he  thereupon  pro- 
ceeds to  discuss  principles  applicable  to  all  such  classes  alike.^ 
Reeve  carries  the  discussion  still  further,  as  to  factors,  brokers, 
attorneys,  and  agents  generally .^  Kent,  writing  for  later 
1  1  Bl.  Com.  Cli.  14.  2  lieeve  Dom.  Rel.  339  et  seq. 

41  [  641  ] 


*  601  MASTER  AND   SERVANT. 

readers,  with  a  clearer  appreciation  of  his  limits,  classifies  into 
slaves,  hired  servants,  and  apprentices,  and  confines  his  dis- 
cussion more  carefully  to  what  might  subserve  the  wants  of 
the  domestic  law ;  yet,  not  with  exactness.^  None  of  these 
writers  erred  in  their  general  views  ;  the  principles  of  the  law 
had  already  spread  out  with  the  growth  of  society  in  such  a 
manner  that  they  were  obliged  to  follow  the  authorities.  For 
the  same  reason  the  present  writer,  keeping  in  view  the  natu- 
ral boundaries  of  his  subject,  will,  nevertheless,  take  a  some- 
what comprehensive  and  desultory  range ;  thereby  meeting 
better  the  practical  wants  of  the  lawyer,  and  satisfying  a 
reasonable  expectation. 

Slavery,  for  obvious  reasons,  need  no  longer  be  treated  as 
a  branch  of  our  law  of  master  and  servant.  We  come  first, 
then,  to  hired  servants,  or  servants  proper ;  and  as  to  these 
the  contract  between  them  and  their  masters  arises  upon  the 
hiring  ;  the  servant  being  bound  to  render  the  service,  and  the 
master  to  pay  the  stipulated  consideration.^  The  next  class  is 
that  of  apprentices  :  fairly  distinguishable,  as  comprising  such, 
usually  minors,  as  are  bound  out  under  public  statutes,  and 
over  whom  by  reason  of  their  tender  years,  and  in  accordance 
with  the  spirit  of  such  statutes,  the  master  stands  somewhat 
in  the  stead  of  a  parent.  Yet,  apprentices  might  be  bound 
out  merely  to  learn  a  trade,  and  as  part  of  the  education  fur- 
nished by  their  judicious  parents  ;  and  Blackstone  mentions 
that  very  large  sums  were  sometimes  given  with  them  for 
their  instruction  at  his  day.^     Thirdly,  persons  com- 

*  602    monly   known    in   popular   *  speech   as   workmen   or 

employes,  who  are  brought  within  the  principles  of 
one  or  both  of  the  two  preceding  classes,  and  to  whom  the 
relation  of  master  and  servant  may  well  be  said  to  apply.  In 
this  class  are  included  day-laborers,  factory  operatives,  miners, 
colliers,  and  numerous  others,  of  whom  nothing  more  definite 
can  be  said  than  that  they  are  hired  to  perform  services  of  a 
somewhat  unambitious  character.  If  to  these  be  added  all 
other  occupations  to  which  the  same  rules  are  from  time  to 

1  2  Kent  Com.  Lee.  32.  2  i  b1.  Com.  425 ;  2  Kent  Com.  258. 

3  See  1  Bl.  Com.  426  ;  2  Kent  Com.  263,  264. 

[.  642  ] 


i 


NATURE  OF  THE  RELATION.  *  602 

time  applied  in  the  courts,  it  is  gratifying  to  reflect  that  the 
servant  is  frequently  the  social  equal,  or  even  the  superior,  of 
his  master.  But  let  us  invert  the  order,  disregarding  general 
service  for  the  present.  In  other  words,  let  us  glance  rapidly 
at  the  relation  first  of  workmen  and  next  of  apprentices;  then 
we  can  consider  the  relation  of  hired  servants  in  its  wider 
sense  more  at  our  leisure. 

First.  The  rights  of  workmen  or  employes  furnish  a  fruit- 
ful topic  for  legislation.  And  so  widely  do  the  Englisli  and 
American  systems  differ  in  these  and  kindred  matters,  that 
judicial  precedents  may  not  always  be  safely  interchanged 
between  the  two  nations.  Further  is  it  to  be  remarked  that 
apprentices  and  workmen  are  very  generally  affected  by  the 
same  statutes. 

Prior  to  1824,  English  industrial  legislation  leaned  de- 
cidedly in  favor  of  the  master.  Trade  monopolies,  of  which 
Sir  Edward  Coke  complained  so  justly,  were  indeed  greatly 
restricted  in  the  time  of  James  I. ;  ^  yet  their  influence  was 
felt  down  to  a  much  later  period ;  and  certain  corporations 
and  guilds  enjoyed  exclusive  privileges,  which  obstructed 
almost  entirely  the  enterprise  of  individuals.  Attempts  were 
made  from  time  to  time  to  better  the  condition  of  the  working 
classes,  and  to  regulate  the  payment  of  their  wages  ;  but 
while  fines  and  imprisonment  were  the  punishment  of  the 
employed,  the  employer  suffered  rarely  for  his  own  miscon- 
duct beyond  rescission  of  the  contract.^  To  exercise  a  trade  in 
any  town  without  having  previously  served  an  apprenticeship 
of  seven  years,  was  a  penal  offence.^  So,  to  entice  or 
seduce  artisans  to  settle  abroad  and  *  communicate  *  603 
their  knowledge,  to  engage  in  the  export  of  machinery, 
all  this  was  criminal,  and  punished  with  severity,  the  object 
proposed  by  such  legislation  being  to  prevent  the  destruction 
of  home  manufactures.^  An  important  act,  passed  in  Ma}', 
1823,  was  calculated  to  ameliorate  the  condition  of  workmen, 

1  3  Inst.  181.     See  4  Bl.  Com.  159. 

2  See  acts  20  Geo.  2,  c.  19,  6  Geo.  3,  c.  25;  Macdonald  Handybook,  70,  &c. ; 
1  Bl.  Com.  426,  427. 

3  4  Bl.  Com.  160.  *  lb. 

[  643  ] 


♦  603  MASTER  AND   SERVANT. 

by  enlarging  the  powers  of  magistrates  on  behalf  of  appren- 
tices ;  yet,  English  petty  magistrates  were  always  inclined  to 
obsequiousness,  and  their  tribunals  had  not  the  confidence  of 
the  working  classes,  as  remains  the  fact  to  this  day. 

Public  sentiment  of  later  years,  however,  has  undergone  a 
great  change,  and  class  legislation  has  fallen  into  compara- 
tive disrepute.  No  principle  so  beneficial  to  workmen  has 
been  introduced  as  that  of  arbitration.  This  doctrine  of 
arbitration  appears  distinctly  set  out  in  the  act  5  Geo.  IV. 
c.  96,  of  1824,  a  consolidating  statute  which  gets  rid  of 
former  inequalities,  and  marks  the  latest  era  in  English  in- 
dustrial legislation.  Yet  the  arbitration  provisions  of  this 
act  are  said  not  to  have  worked  well  in  practice,  partly,  as  a 
writer  suggests,  because  of  the  requisite  intervention  of  a 
justice  of  the  peace,  partly  from  its  lack  of  simplicity.^  But 
a.  very  recent  act  establishes  "  equitable  councils  of  concilia- 
tion "  to  adjust  differences  between  masters  and  workmen, 
upon  a  plan  much  resembling  the  French  courts  of  Prud'- 
hommes?  The  plan  is,  that  masters  and  Avorkmen  shall  each 
elect  their  own  delegates  to  a  board  or  council,  which  is  em- 
powered to  fix  upon  the  rate  of  wages  between  employer  and 
employed,  and  otherwise  adjust  disputes  peculiarly  appertain- 
ing to  such  service.^  And  a  still  later  act  sets  forth  the 
details  of  such  agreements  quite  fully,  and  further  provides 
for  the  designation  of  arbitrators  in  case  of  a  disagree- 
ment.* 

*  604        *  There  is  comparatively  little  legislation  of  this  sort 

J  Macdonald  Handybook,  137,  —  a  small  and  convenient  compendium  re- 
cently published  (1868). 

2  30&31  Vict.  c.  105  (1807). 

3  This  experiment  had  been  tried  in  the  English  manufacturing  districts  for 
some  years  ])revious  to  the  passage  of  the  act,  and  with  marked  success.  A 
celebrated  strike  at  Nottingliam,  in  1860,  led  to  its  first  practical  application  ; 
and  though  there  was  then  no  statute  countenancing  such  a  court,  manufacturers 
elsewhere  were  soon  led  to  adopt  the  system  from  its  manifest  convenience.  To 
introduce  such  a  court  into  ICngland  is  said  to  have  been  a  favorite  speculation 
of  the  late  Lord  Brougham.     See  Macdonald  Handybook,  274. 

4  35  &  36  Vict.,  August  6,  1872.  The  principle  of  arbitration  in  the  matter 
of  trade  disputes  was  lately  adopted  (1872)  by  master-builders  and  masons  on  a 
strike,  upon  the  reconunendation  of  a  committee  of  the  Social  Science  Asso- 
ciation. 

[644] 


NATURE  OF  THE  RELATION.  *  604 

to  be  found  in  our  States.  Trade  is  less  fettered  in  Amer- 
ica than  it  was  in  England  ;  and  disputes  between  master 
and  servant  have  been  generally  adjusted  between  them- 
selves or  by  the  ordinary  legal  methods.  The  fluctuation  of 
society  in  America,  the  variety  of  pursuits  always  open  to 
active  competitors,  the  opportunities  freely  afforded  for  social 
elevation,  together  witli  the  fact  of  a  wider  distribution  of 
our  manufacturing  population  than  in  England,  contribute  to 
the  difference.  The  employe  of  to-day  becomes  the  employer 
of  to-morrow.  Yet  humane  laws  are  frequently  enacted,  and 
still  more  frequently  called  for.  In  Connecticut,  Pennsylva- 
nia, and  other  States,  children  are  specially  protected  from 
laborious  toil  unsuited  to  their  years,  and  the  hours  of  work 
in  the  mills  are  reduced  to  a  proper  limit. ^  And  young  chil- 
dren are  to  be  taught  the  necessar}^  branches  of  a  common 
education,  notwithstanding  their  employment  in  manual  la- 
bor.2 

Trade  associations  are  often  formed  in  both  countries  to 
protect  the  rights  of  workmen  in  certain  mechanical  pursuits. 
But  arbitrary  and  oppressive  conduct,  on  the  part  of  such 
associations,  is  not  to  be  countenanced.  Thus,  where  a  trade 
association  conspires  to  break  down  the  business  of  a  master 
mechanic,  because  he  will  not  pay  a  sum  demanded,  by  inter- 
fering with  his  employment  of  workmen,  he  may  sue  them  for 
damages.^ 

Second.  The  relation  of  apprentice  was,  in  its  original 
spirit  and  policy,  as  Kent  has  observed,  calculated  to  give  the 
apprentice  a  thorough  trade  education,  and  to  advance  the 
mechanic  arts.^  To  some  extent,  it  has  that  significance  still. 
The  English  apprentice  system,  beyond  what  has  just  been 
noticed  of  working-men  generally,  has,  however,  referred 
more  especially  to  the  poor  or  parish  apprentices,  who,  under 
a  late  act,  may  be  bound  out  to  the  sea  service  as  well  as  a 

1  See  2  Kent  Com.  last  ed.  266,  and  notes  referring  to  statutes  of  Pennsyl- 
vania, Maine,  New  Hampshire,  Connecticut,  and  New  Jersey. 

2  There  are  similar  acts  in  England  lately  passed.  See  Factory  Acts,  7  Vict. 
c.  15  ;  10  Vict.  c.  29  ;  16  &  17  Vict.  c.  104  ;  24  &  25  Vict.  c.  117  ;  30  &  31  Vict, 
c.  103. 

3  Carew  v.  Rutherford,  106  Mass.  1.  <  2  Kent  Com.  266. 

[  645  ] 


*  604  MASTER  AND   SERVANT. 

trade. ^     In  many  American  States  there  appear  to  exist  no 
provisions  for  binding  out  others  than  poor  children 

*  605    and  orphans.     Again,  in  other  States,  *  as  New  York, 

Massachusetts,  and  Pennsylvania,  the  provisions  are 
more  general.^  The  principle  of  such  statutes  is  to  permit 
those  having  custody  to  assign  to  strangers  a  certain  authority 
over  their  children,  until  the  latter  reach  majority  ;  and  town 
authorities,  or  overseers  of  the  poor,  may,  in  many  instances, 
supply  the  want  of  natural  protectors.  But,  inasmuch  as  the 
infant's  own  assent  is  now  made  essential  to  such  instru- 
ments, so  far  as  binding  him  beyond  the  age  of  discretion  is 
concerned ;  inasmuch  as  courts  do  not  hesitate  to  disregard 
them,  if  at  all  inequitable,  or  even  perhaps  if  drawn  up  not 
in  strict  conformity  to  statute  ;  while,  according  to  our  policy, 
the  child's  freedom  to  dispose  of  his  own  time  in  general  when 
left  to  earn  his  living,  is  very  favorably  regarded  ;  it  must  be 
said  that  apprenticeship  by  indenture  is  now  thought  less 
desirable  than  it  was  formerly.  Public  authorities  may  resort 
to  it  with  advantage  for  securing  good  homes  to  the  homeless ; 
parents  not  equally  so ;  the  poor,  however,  may  often  thus 
secure  a  trade  education  for  their  children  without  cost  to 
themselves.  There  can  certainly  be  nothing  unreasonable  in 
permitting  one  of  suitable  discretion  to  make  any  fair  contract 
of  service,  whether  verbal  or  in  writing,  and  the  advantages 
may  often  constitute  an  adequate  compensation  for  his  labor. 
If  he  be  very  discreet  he  will  not,  however,  make  a  contract 
to  last  without  possible  modification  for  any  great  length  of 
time.^ 

1  1  Bl.  Com.  426,  notes  by  Chitty  and  others. 

2  See  2  Kent  Com.  262,  jxissim,  last  ed.,  and  n. 

8  There  are  many  Englisli  and  American  decisions  as  to  the  mutual  rights 
and  duties  of  master  and  apprentice,  most  of  which  are  of  local  or  limited 
application.  The  English  cases  will  be  found  in  Macdonald  Handybook,  76, 
216.  Prospective  damages  cannot  be  recovered  by  the  master  where  the 
apprentice  unlawfully  quits  the  service.  Lewis  v.  Peachey,  1  H.  &  C.  518.  To 
make  the  master  liable  on  his  covenant  to  teach  a  trade,  it  must  appear  that  the 
apprentice  was  ready  and  willing  to  be  taught.  Raymond  v.  Minton,  L.  R. 
1  Ex.  244.  Such  indentures  are  strictly  construed  and  must  be  executed 
according  to  statute.  St.  Nicholas  v.  St.  Bodolph,  12  C.  B.  n.  s.  645.  Ques- 
tions relating  to  the  conviction  of  apprentices  or  workmen  for  misconduct  con- 
stantly arise  under  the  English  statutes  ;  also  as  to  the  parish  settlement  of 

[646] 


NATURE   OF   THE   RELATION.  *  606 

Third.  *  To  come,  then,  to  tlie  strictly  legal  relation    *  606 
of  master  and  servant.     This   contract  arises  purely 


pauper  apprentices.  Macdonald,  76  ;  ib.  218.  See  Boast  v.  Firth,  L.  R.  4  C.  P.  1, 
as  to  actions  for  breacli  of  indenture  of  apprenticeship.  It  is  doubtful  wliether 
courts  of  equity  in  England  would  cancel  indentures  of  apprenticeship  except  for 
fraud.  Webb  v.  England,  29  Beav.  44.  The  master  has  his  remedies  against 
third  persons  for  enticement,  on  the  principles  usually  applicable  to  servants. 
Cox  V.  Muncey,  6  C.  B.  n.  s.  375. 

In  this  country,  it  would  appear  to  be  the  rule  that  contracts  of  apprentice- 
ship, not  executed  in  strict  accordance  with  statute,  are  invalid ;  or,  ratlier,  are 
voidable  by  the  parties  concerned.     Maltby  v.  Harwood,  12  Barb.  473  ;  Bolton 
V.  Miller,  6  Ind.  262.     But  see  Brewer  v.  Harris,  5  Gratt.  285.     Yet  the  relation 
of  master  and  servant  may  be  inferred,  notwithstanding,  from  the  acts  and  con- 
duct of  the   parties.     Maltby  v.   Harwood,  ib. ;  Page  v.  Marsh,  36  N.  H.  305. 
In  many  instances,  the  courts  exercise  a  supervisory  influence  ;  and  they  will 
insist  upon  the  provisions  being  reasonable  ;  in  some  cases,  requiring  the  inser- 
tion of  fair  covenants  on  the  master's  part,  such  as  instruction  of  the  apprentice 
in  some  particular  trade;  and  they  will  even  cancel  indentures  which  are  un- 
suitable in  terms  or  were  fraudulently  procured.     Owens  v.  Ciiaplain,  3  Jones, 
323 ;  Finch  v.  Gore,  2  Swan,  326  ;  Bakers  v.  Winfrey,  15  B.  Monr.  499 ;  Lam- 
moth  V.  Maulsby,  8  Md.  5  ;    Bell  v.  Herrington,  3  Jones,  320 ;  Hatcher  v.  Cutts, 
42  Geo.  616.     Both  in  this  country  and  in  England,  the  apprentice  on  reaching 
full  age  may  abandon  the  contract,  though  the  rule  of  avoidance  is  not  expressed 
with  uniformity.     Drew  i-.  Peckwell,  1  E.  D.  Smith,  408;  Walker  r.  Chambers, 
5  Harring.  311 ;  Forsyth  v.  Hastings,  27  Vt.  646  ;  Wray  v  West,  15  L.  T.  n.  s. 
180,  Q.  B.     It  is  held  that  overseers  of  the  poor,  in  binding  out  paupers  as  ap- 
prentices, act  as  public  oflBcers  and  not  as  the  agents  of  their  towns.     Glidden  v. 
Unity,  10  Fost.  104.     And  see  Bardwell   r.  Purrington,  107   Mass.  419.     The 
master's  right  of  custody  as  against  an  unwilling  apprentice,  who  wishes  to 
return  to  his  parents,  appears  in  this  country  to  be  quite  doubtful,  though  the 
indentures  be  well  drawn  ;  the  wishes  of  the  child  being  apparently  regarded  as 
paramount.     People  v.  Pillow,  1  Sandf.  Sup.  672.     In  several  instances,  where 
imperfect  indentures  had  been  terminated,  the  master  was  held  not  liable  for  the 
apprentice's  services  on  a  quantum  meruit,  their  original  engagement  contemplat- 
ing nothing  of  the  kind.     Maltby  v.  Harwood,  12  Barb.  473  ;  Page  v.  Marsh, 
36  N.  H.  305;  Hudson  v.  Worden,  39  Vt.  382.    The  assignment  of  apprenticeship 
is  in  some  States  pronounced  void,  the  trust  being  personal ;  and  in  general  it  is 
voidable  by  the  infant  himself.     Tucker  v.  Magee,  18  Ala.  99  ;  Huffman  v.  Rout, 
2  Met.  (Ky.)50;  Allison   v.   Norwood,  Busbee,   414;    Commonwealth  v.  Van 
Lear,  1   S.  &  R.  248  ;  Phelps  r.  Culver,  6  Vt.  430.     Yet  the  infant's  renewed 
assent  may  give  force  to  it.     See  Williams  v.  Finch,  2  Barb.  208;  Nickerson  v. 
Howard,  19  Johns.  113.    In  some  States,  and  perhaps  in  all,  infancy  is  a  good  plea 
to  action  of  covenant  on  such  indentures.     M'Knight  v.  Hogg,  1  Const.  117.     See 
Brock  V.  Parker,  5  Ind.  538.     As  to  the  construction  and  method  of  execution 
of  such  indentures,  see  also  Whitmore  v.  Whitcomb,  43  Me.  4-58 ;  Van  Dorn  v. 
Young,  13  Barb.  286  ;  Glidden  v.  Unity,  10  Fost.  104  ;  Wright  v.  Brown,  5  Md. 
37.     For  enticement  of  an  apprentice,  the  master  has  the  usual  remedies  against 
third  persons ;  and  sometimes  tlie  party  enticing  may  be  indicted.     Holhday  v. 

[047] 


*  606  MASTER   AND   SERVANT. 

*  607    upon  the  hiring.     If  the  *  hiring  be  general,  without 

any  particular  time  limited,  the  old  law  construes 
it  into  a  year's  hiring.^  But  the  equity  of  this  rule  extended 
only  to  such  employment  as  the  change  of  seasons  affected ; 
as  where  the  servant  lived  with  his  master  or  worked  at  agri- 
culture.  By  custom,  such  contracts  have  become  determin- 
able in  the  case  of  domestic  servants,  upon  a  month's  notice, 
or,  what  is  an  equivalent,  payment  of  a  month's  wages.^ 
Laborers  are  hired  frequently  by  the  day,  and  to  hire  by  the 
week  is  not  unusual."^  Yet,  as  to  hiring  in  general,  the  rule 
still  is  that  if  master  and  servant  engage  without  mentioning 
the  time  nor  the  frequency  of  payment,  it  is  a  general  hiring, 
and  in  point  of  law  a  hiring  for  a  year.*  Custom  modifies 
this  principle,  and  the  date  and  frequency  of  periodical  pay- 
ments are  material  circumstances  in  each  case.  The  principle 
of  yearly  hiring  is  applicable  to  all  contracts  of  hiring  and 
service,  whether  written  or  unwritten,  whether  express  or 

Gamble,  18  111.  35;  Bardwell  v.  Purrington,  107  Mass.  419;  Doane  v.  Covel, 
56  Me.  527  ;  Hooks  v.  Perkins,  Busbee,  21.  Thougli  this  seems  to  be  because  of 
the  relation  of  servant  rather  than  apprentice.  See  ch.  4,  infra.  And  a  father 
who  executes  such  indenture  is  bound  to  exercise  his  paternal  authority  to  aid 
in  its  enforcement.  Van  Dorn  v.  Young,  13  Barb.  286.  A  settlement  between 
master  and  apprentice  made  soon  after  the  expiration  of  the  term  will  be  viewed 
with  great  jealousy.  McGunigal  v.  Mong,  5  Barr,  269.  As  a  rule,  except  in 
cases  of  paupers,  both  the  English  and  American  statutes  require  that  the  infant 
shall  execute  the  deed,  if  of  fourteen,  as  well  as  his  parents,  and  the  policy  of 
the  law  is  against  binding  out  one  of  discreet  years,  unless  he  is  made  a  party  to 
the  instrument.  See  2  Kent  Com.  last  ed.  263,  264,  and  notes  ;  Stats.  Vermont, 
New  York,  Maine,  &c.  The  infant's  informal  assent  will  not  bind  him.  Com- 
monwealth V.  Moore,  1  Aslim.  123 ;  Squire  v.  Whipple,  1  Vt.  69.  But  see 
Fisher  v.  Lunger,  4  Vroom,  100.  It  must  be  distinctly  expressed  in  tlie  indent- 
ure. Harper  i>.  Gilbert,  5  Cush.  417.  And  where  the  court  binds  out,  prudence 
requires  that  the  infant  should  be  present.  Mitchell  v.  Mitcliell,  67  N.  C.  307. 
The  mother's  consent,  too,  as  parent,  where  the  father  is  dead,  or  incapacitated 
from  giving  consent,  is  favored  in  many  States.  People  v.  Gates,  43  N.  Y.  40. 
And  under  our  statutes,  a  child  may  frequently  be  apprenticed  to  Shakers,  as 
well  as  to  any  other  master.  People  v.  Gates,  43  N.  Y.  40  ;  Curtis  v.  Curtis,  5 
Gray,  535.  An  apprentice's  residence  during  minority  would  appear  to  be  that  of 
his  master.     Maddox  v.  State,  32  Ind.  111. 

1  Co.  Litt.  42;  1  Bl.  Com.  425. 

■^  Nowlan  v.  Ablett,  2  Cr.,  M.  &  R.  54 ;  Fawcett  v.  Cash,  5  B.  &  Ad.  904  ; 
Fewings  v.  Tisdal,  1  Exch.  295. 

3  R.  V.  Pucklechurch,  5  East,  382. 

*  Fawcett  v.  Cash,  5  B.  &  Ad.  904.     See  Lilley  v.  Elwin,  11  Q.  B.  742. 

[648] 


NATURE   OF   THE   RELATION.  *  607 

implied,  and  whatever  the  nature  of  the  service  ;  its  modifi- 
cations arise  whenever  the  contract  contains  stipulations 
inconsistent  with  its  application,  or  where,  from  some  well- 
known  custom  upon  tlie  subject,  the  parties  may  be  considered 
to  have  contracted  with  sole  reference  to  such  custom.^  In 
this  country,  at  least,  if  a  contract  for  hiring  is  at  so  much 
per  month,  it  will  readily  be  presumed  that  the  hiring  was  by 
the  month,  even  if  nothing  was  said  about  the  term  of  ser- 
vice.^ But  the  periodical  payment  is  not  conclusive  as  to  the 
periodical  hiring  where  the  evidence  shows  an  arrangement 
for  a  different  period. ^ 

The  rule  as  to  hiring  does  not  apply  to  cases  where  there 
has  been  a  service,  but  no  contract  of  hiring  and  no  circum- 
stances from  which  a  contract  can  be  inferred.  And  a  con- 
tract of  hiring  cannot  be  presumed  where  the  circumstances 
tend  to  rebut  such  a  presumption,  as  where  paupers 
have  been  taken  *  to  live  with  their  relatives  out  of  *  608 
charity,*  or  where  the  agreement  was  for  cohabitation 
and  not  for  service.^ 

Where  either  party  is  at  liberty  to  determine  the  service  at 
any  time  without  notice,  the  hiring  cannot  be  considered  a 
yearly  contract.^  Or  if  the  hiring  be  expressly  for  less  than 
a  year  ;  although  done  purposely  to  avoid  the  consequences 
of  a  yearly  hiring.'^  Or  if  tlie  agreement  be  to  do  work  by 
the  piece  or  job.^  Or  if  certain  portions  of  the  year  are 
specially  excepted.^  Or  if  the  master  has  not  entire  control, 
and  the  servant  is  at  liberty  when  not  engaged  for  his  master 
to  work  for  others  ;  though  this  rule  is  to  be  cautiously  ap- 

1  Smith  Mast.  &  Serv.  41, 42  ;  Rex  v.  Worfield,  5  T.  R.  506 ;  Baxter  v.  Nurse, 
1  Car.  &  K.  10  ;  Hathaway  v.  Bennett,  10  N.  Y.  108. 

2  Beach  v.  Mullin,  5  Vroom,  343. 

'^  Tatterson  v.  Suffolk  Man.  Co.,  106  Mass.  56 ;  Prentiss  v.  Ledyard,  28  Wis. 
131. 

*  Rex  V.  Sow,  1  B.  &  Aid.  178 ;  Smitli  Mast.  &  Serv.  42. 

5  Rex  V.  Northwingfield,  1  B.  &  Ad.  912. 

6  Smith  Mast.  &  Serv.  43,  44,  and  cases  cited  ;  Rex  v.  Great  Bowden,  9  B.  & 
C.  24'.),  and  cases  cited. 

^  Rex  V.  Standon  Massey,  10  East,  576 ;  Dunsford  v.  Ridgwicli,  2  Salli.  535 ; 
Rex  V.  Coggesliall,  6  M.  &  S.  264. 

8  Rex  V.  Woodhurst,  1  B.  &  Aid.  325. 

9  Rex  V.  St.  Helen's,  4  B.  &  Ad.  726. 

[  649] 


.^*#^ 


*  608  MASTER   AND   SERVANT. 

plied.i     The  same  principle  holds  good  where  the  hours  of 
working  are  limited  by  contract.^ 

We  find  at  the  outset,  then,  a  distinction  made  in  practice 
between  servants,  menial  or  domestic,  and  other  servants  ; 
which  distinction  is  founded  upon  a  custom  of  dissolving  the 
relation,  not  at  the  end  of  a  year,  but  at  any  time  upon  giving 
the  other  a  month's  wages.  An  English  writer  says  that  no 
general  rule  can  be  laid  down  as  to  who  do  and  who  do  not 
come  within  the  category  of  menial  servants  ;  every  case  must 
stand  upon  its  own  circumstances.^  But  in  a  late  case,  where 
the  subject  was  fully  discussed,  the  disposition  manifested  was 
to  extend  the  word  "  domestic  "  beyond  the  signification 
"  menial ;  "  and  a  family  huntsman  was  brought  within  the 

above  rule.*  The  reason  is  apparently  that  contracts 
*  609    for  services  *  which  bring  the  parties  into  such  close 

proximity  and  frequency  of  intercourse  that  they  are 
valuable  only  when  mutually  agreeable  and  otherwise  intol- 
erably annoying,  should  be  readily  terminated  at  the  option 
of  either  party. ^ 

A  governess  engaged  at  a  yearly  salary,  though  residing  in 
the  house,  is.  however,  held  not  to  be  within  the  class  of 
menial  or  domestic  servants  :  regard  being  paid  by  the  court 
to  the  dignity  of  her  position.^  But  the  head  gardener  is, 
though  living  not  in  the  master's  house,  but  in  his  own  cot- 
tage in  the  domain.'^ 

At  the'  common  law,  a  servant  might  be  hired  either  by 
deed  or  by  a  parol  contract,  but  when  hired  or  retained  by 
deed  he  could  only  be  discharged  by  an  equally  formal  instru- 
ment ;  when  hired  by  parol  he  might  be  discharged  by  parol.^ 

1  Rex  V.  Killhigholme,  10  B.  &  C.  802.  See  Reg.  v.  Ravenstonedale,  12  Ad. 
&  El.  73. 

2  Reg.  V.  Preston,  4  Q.  B.  597.  »  Smith  Mast.  &  Serv.  2d  ed.  52. 

*  NicoU  V.  Greaves,  17  C.  B.  n.  s.  27.  The  dictionaries  furnisii  little  aid  on 
this  point. 

5  Per  Erie,  C.  J.,  ib.  See  further,  Nowlan  v.  Ablett,  2  Cr.,  M.  &  R.  54 ;  John- 
son V.  Blenkensopp,  5  Jur.  807  ;  Crocker  v.  Molyneux,  8  Car.  &  P.  470  ;  Ex 
parte  Walter,  L.  R.  15  Eq.  412  ;  Stone  v.  Western  Transportation  Co.,  38  N.  Y. 
240. 

6  Todd  V.  Kerrich,  8  Exch.  151  ;  14  E.  L.  &  Eq.  433. 

7  Nowlan  v.  Ablett,  2  Cr.,  M.  &  R.  54. 

8  Smith  Mast.  &  Serv.  16 ;  Dalt.  Just.  c.  58. 

[  650] 


NATURE  OF  THE  RELATION.  *  609 

But  since  the  enactment  of  the  statute  of  frauds,  contracts 
of  hiring  must  be  frequently  expressed  in  writing,  in  order  to 
be  legally  effectual.  Under  this  statute,  the  contract  of  ser- 
vice may  be  verbally  made  and  proved  if  it  is  capable  of  per- 
formance within  a  year  ;  otherwise,  it  must  be  in  writing. 
Hence,  a  verbal  agreement  to  hire  for  a  year,  commencing  at 
a  future  day,  is  insufficient.^  In  short,  a  contract  for  personal 
service  which  is  not  to  go  into  operation  for  a  year,  or  is  to 
continue  in  force  and  hold  the  parties  together  for  a  longer 
period,  must  be  in  writing.^  Yet  it  seems  that  a  contract 
made  on  a  certain  day  to  serve  for  a  year  from  the  following 
day  is  not  within  the  statute  of  frauds.^ 

Restraint  of  trade  sometimes  enters  as  an  element  into 
agreements  between  master  and  servant.  If  profes- 
sional men,  *  manufacturers,  or  tradesmen  take  clerks,  *  610 
apprentices,  or  workmen  into  their  employ,  and  require 
them  to  agree  that  they  will  not  carr}'  on  a  like  profession, 
manufacture,  or  trade  within  certain  limits ;  this  for  the  pur- 
pose of  securing  themselves  against  competition ;  the  contract, 
being  in  restraint  of  trade,  is  illegal  and  void.'*  The  general 
rule  is  that,  in  order  to  render  such  a  contract  valid  at  law,  the 
restraint  must  be  (1st),  partial  only  ;  (2d),  upon  an  adequate, 
or,  as  the  law  now  seems  to  stand,  not  a  mere  colorable  re- 
striction;  (3d),  reasonable  and  not  oppressive.^  Even  then 
equity  would  be  loth  to  enforce  it  specifically  if  it  be  at 
all  hard  or  even  comjolex  ;  ^  though  in  many  cases  it  will 
do  so.' 

To  the  same  general  head  as  contracts  in  restraint  of  trade 

i  Bracegirdle  v.  Heald,  1  B.  &  Aid.  722;  Giraud  v.  Richmond,  2  C.  B.  835. 

2  See  1  Smith  Lead.  Cas.  432,  and  American  notes,  where  this  subject  is 
thorouglily  examined. 

3  Cawthorn  v.  Cordrey,  32  L.  J.  n.  s.  C.  P.  152. 

*  Com.  Dig.  "  Trade,"  D.  3 ;  Mitchel  v.  Reynolds,  1  P.  Wms.  181 ;  s.  c.  1 
Smitli  Lead.  Cas.  508,  Ain.  ed.  notes ;  Lange  v.  AVerk,  2  Ohio,  n.  s.  520  ;  Law- 
rence I'.  Kidder,  10  Barb.  641  ;  Oilman  v.  Dwight,  13  Gray,  35G  ;  Duffey  v. 
Shockey,  11  Ind.  71. 

5  1  Smitli  Lead.  Cas.  ib.  '^  Kemble  i'.  Kcan,  6  Sm.  335. 

7  Kemble  v.  Kean,  6  Sim.  335 ;  Benwell  v.  Inns,  24  Beav.  307.  And  see 
Smitli  Mast.  &  Serv.  51  et  seq. ;  Mallan  v.  May,  11  M.  &  W.  653 ;  Mumford  v. 
Gething,  7  C.  B.  n.  s.  305. 

[  651] 


*  610  MASTER  AND   SERVANT. 

belong  contracts  by  which  the  services  of  individuals  are 
secured  for  a  specified  time,  or  for  life,  to  a  particular  master. 
Contracts  for  life  are  not  illegal  at  common  law  ;  but  they  are 
very  strongly  objectionable  ;  and,  in  this  country,  it  is  doubt- 
ful whether  they  would  ever  be  enforced,  so  contrary  are  they 
to  the  spirit  of  our  institutions.^  Yet  some  writers  commend 
such  contracts ;  and  in  England  agreements  whereby,  in  sub- 
stance, workmen  engaged  to  serve,  for  a  term  of  seven  years, 
certain  persons  or  their  firm,  or  again,  at  a  certain  scale  of 
wages  subject  to  determine  in  the  event  of  sickness  or  inca- 
pacity of  the  men  or  cessation  of  business  by  the  employer, 
were  considered  valid  and  unobjectionable .^ 

But,  in  Massachusetts,  a  contract  made  by  an  adult 

*  611    with  *a  citizen  of  the  United  States  to  serve  him,  "  his 

executors  and  assigns,"  for  five  years,  without  fixing 
the  nature  and  extent  of  the  services,  or  the  place  of  their 
performance,  in  consideration  of  ten  dollars,  and  of  being 
fed,  clothed,  and  lodged,  and  at  the  expiration  of  the  con- 
tract being  paid  "the  customary  freedom  dues,"  is  pronounced 
illegal  and  void,  even  if  valid  where  made.^  "  Such  a  con- 
tract, it  is  scarcely  necessary  to  say,  is  against  the  policy  of 
our  institutions  and  laws,"  was  the  language  of  the  court. 

As  a  general  rule,  every  person  of  full  age,  free  from  all 
other  incompatible  engagements,  may  become  either  a  master 
or  a  servant ;  and  the  service  need  not  be  performed  under  a 
legally  binding  contract,  for  the  service  may  be  constituted 
de  facto. ^  The  usual  law  of  contracts  applies  to  all  who  enter 
the  relation.  And  arrangements  for  remunerating  a  servant 
by  a  portion  of  the  profits  may,  under  some  circumstances, 
constitute  him  a  partner  rather  than  a  mere  servant.^ 

The  relation  of  master  and  servant  is  created,  so  far  as  may 
affect  the  rights  of  third  persons,  when  one  suffers  another  to 


«  See  Wallis  v.  Day,  2  M.  &  W.  277 ;  1  Smith  Lead.  Cas.  521. 

-  Pilkington  v.  Scott,  15  M.  &  W.  657  ;  Hartley  v.  Cummings,  5  C.  B.  247. 
See  1  Smith  Lead.  Cas.  ib. 

3  Parsons  v.  Trask,  7  Gray,  473.  And  see  Mary  Clark's  Case,  1  Blackf. 
(Ind.)  122. 

*  Smith  Mast.  &  Serv.  1.  »  ib.  29. 

[652  J 


NATURE   OF  THE   RELATION.  *611 

proceed  in  a  service  in  which  the  latter  engaged  only  as  a 
volunteer.^  Yet  one  cannot  by  merely  rendering  services 
voluntarily,  without  request  or  assent,  compel  the  other  to 
become  his  debtor.^ 

A  municipal  or  other  corporation  may  sustain  the  quasi 
relation  of  master  and  servant  with  those  in  its  employ,  so 
as  to  be  liable  for  the  negligence  of  the  person  employed.-^ 
Such  a  relation  between  railroad  companies  and  those  in  their 
employ  is  constantly  recognized  in  the  courts. 

The  two  terms,  "  master  and  servant "  and  "  prin- 
cipal and  *  agent,"  are,  in  fact,  frequentl}-  interchanged  *  612 
as  though  identical  in  meaning,  and,  indeed,  one  is 
usually  quite  as  exact  as  the  other.  In  Ohio,  the  distinguish- 
ing feature  of  the  relation  of  service  has  been  said  to  be  that 
the  employer  keeps  control  over  the  mode  and  manner  of 
work,  and  this  applies  to  contractor,  agent,  oi*  servant ;  in- 
dependent contracts,  however,  not  falling  within  the  rule.* 
But,  in  Illinois,  contractors  building  a  railroad  appear  to  be 
treated  as  servants  of  the  company  in  a  more  extended  sense.^ 
In  Connecticut,  it  is  said  that  the  manner  of  paj'ing  for  work 
constitutes  no  criterion,  nor  the  existence  of  actual  present 
control  and  supervision  on  the  part  of  the  employer  ;  but 
that  these  are  both  circumstances  to  be  weighed  in  each 
case.^  Where  one  is  neither  employed,  paid,  nor  controlled 
by  another,  he  is  not  his  servant  in  the  legal  sense.'  We 
have  seen  that  adult  children  remaining  in  a  family  may 
be  de  facto  servants,  so  as  to  lay  the  foundation  of  certain 
suits. 

We  are  now  to  inquire  in  what  manner  the  relation  of 
master  and  servant  may  be  terminated.  The  causes  which 
justify  discharge  by  the  master  are  various,  and  the  rule  de- 

1  Hill  V.  Morey,  26  Vt.  178. 

2  Webl)  V.  Cole,  20  N.  H.  490 ;  Alton  v.  Mulledy,  21  111.  76. 
5  See  Scott  V.  Mayor  of  Manchester,  37  E.  L.  &  Eq.  495. 

*  Cincinnati  v.  Stone,  5  Ohio,  n.  s.  38. 

*  Cliicago,  &c.,  R.  R.  Co.  v.  McCarthy,  20  111.  385.  There  is  much  difficulty 
in  applying  the  rule  as  to  railroad  contractors.     See  1  Redf.  Railways,  60G. 

"  Corhin  v.  American  Mills,  27  Conn.  274. 

1  McGuire  v.  Grant,  1  Dutch.  356.     See  Water  Co.  v.  Ware,  16  Wall.  566. 

[653] 


*  612  MASTER  AND   SERVANT. 

pends  somewhat  upon  the  nature  of  the  particular  employ- 
ment in  question.  But  most  decisions  are  reducible  to  three 
leading  cLisses :  first,  wilful  disobedience  of  a  lawful  order ; 
second,  gross  moral  misconduct ;  third,  habitual  negligence 
in  business,  or  other  serious  detriment  to  the  master's  in- 
terests.^ 

An  instance  of   the  first  class  came  before    Lord   Ellen- 
borough,  where  a  farmer's  servant  was  ordered  to  go  with 
the  horses  a  mile  off  just  as  dinner  was  ready,  and  he  said  he 
would  not  go  until  he  had  had  his  dinner.^     And  another, 
more  recent,  is  where  a  farm-servant  refused  to  work 

*  613    during  harvest  without  *  beer.^     In  a  carefully  con- 

sidered English  case,  the  court  went  even  so  far  as  to 
justify  dismissal  of  a  house-maid  who  persisted  in  leaving 
the  house  without  permission  to  visit  a  sick  and  dying 
mother.*  In  these  cases,  and  especiall}^  the  last,  the  author- 
ity of  the  master  is  very  strongly  upheld ;  more  so,  perhaps, 
than  American  policy  would  concede.  Where  the  misconduct 
is  slight,  and  a  first  offence,  where  the  reasons  for  disobedi- 
ence are  extreme,  and  where  the  servant's  general  conduct  is 
exemplar}",  this,  it  seems,  ought  to  go  strongly  in  his  own 
justification  ;  for  the  mutuality  of  contracts  is  always  properly 
considered.  An  obstinate  refusal  to  do  an  unlawful  act  is 
clearly  no  ground  for  dismissal.^  But  for  insolence  and 
wilful  disobedience  of  orders  a  servant  may  generally  be 
dismissed.^ 

Instances  of  the  second  class  are  not  uncommon.  Immo- 
rality is  sufficient  cause  for  dismissal ; '  even  the  pregnancy 
of  a  maid-servant,  according  to  Lord  Mansfield.^  Embezzle- 
ment is  a  good  ground,  though  the  sum  embezzled  be  less 
than  the  arrears  of  wages.^     The  same  is  true  of  robbery. ^° 

1  Smith  Mast.  &  Serv.  70 ;  2  Kent  Com.  259. 

2  Spain  V.  Arnott,  2  Stark.  25G.  »  Lilley  v.  Elwin,  11  Q.  B.  742. 

4  Turner  v.  Mason,  14  M.  &  W.  112.     And  see  Smith  Mast.  &  Serv.  71. 

5  See  Jacquot  v.  Bourra,  7  Dowl.  348. 

6  Beach  v.  Mullin,  5  Vroom,  343. 

7  Atkin  V.  Acton,  4  Car.  &  P.  208.  »  Cakl.  11  ;  ib.  57. 

9  Brown  v.  Croft,  6  Car.  &  P.  16,  n. ;  Spotswood  v.  Barrow,  5  Excli.  110. 
i"  Libhart  v.  Wood,  1  W.  &  S.  2G5 ;  Trotman  v.  Dunn,  4  Camp.  211 ;   Smith 
Mast.  &  Serv.  72. 


NATURE   OF  THE   RELATION.  *  6 1 3 

Habitual  drunkenness  is  doubtless  a  good  ground,  if  it 
seriously  interferes  with  the  due  performance  of  the  par- 
ticular service.^  Acts  and  conduct  which  pointedly  indicate 
fraudulent  misbehavior  towards  the  master  may,  and  should, 
justify  prompt  dismissal.^ 

The  third  class  furnishes  many  examples  ;  and  yet  the  rule 
here  is  to  be  laid  down  with  much  caution,  for  a  practical  ap- 
pUcation  is  difficult.     There  are  some   English  cases  where 
conduct  which  might  ordinarily  seem  justifiable  on  a  servant's 
part  has  been  punished  by  dismissal,  the  court  carrying  out 
the  prevailing  policy  against  teaching  the  secrets  of 
trade  to  *  strangers  or  foreigners.^   So  have  many  deci-    *  614 
sions  seemed  to  sustain  the  master,  where  the  servant 
lacked  in  blind  devotion  to  his  selfish  interests,  or  asserted 
a  generous  independence  of  opinion  a  little  too  boldly.'*     But 
at  the  present  day,  certainly  in    America,  more   might   be 
claimed  for  the   servant  and  less  for  the  master.     Yet  the 
legal  principle  is  correct  that  for  habitual  negligence,  or  for 
such  conduct  as  prevents  a  mutual  agreement  from  being 
carried  out  to  the  reasonable  satisfaction  of  the  employer, 
the  person  employed  may  be  dismissed ;  nor  would  it  seem 
to  matter  much  whether  it  be  through  wantonness  or  palpable 
inefficiency  amounting  to  a  breach  of  implied  undertaking.^ 
A  servant  betraying  his  master's  confidence  may,  it  seems, 
be  discharged.^    But  the  relation  continues  though  the  master 
obtains  a  commitment  of  the  servant  to  prison.'^     So,  where 
absence  is  warrantable,  or  where  the  absence  is  temporary 
for  no  bad  purpose,  and  the  master  has  suffered  no  serious 
loss  thereby.^     Where  serious  danger,  though  perhaps  not 
actual  damage,  is  occasioned  to  the  master's  business  by  his 

1  Gonsolis  V.  Gearliart,  31  Mis.  585.  See  Lord  Dennian,  in  Wise  i:  Wilson, 
1  Car.  &  K.  662. 

-  See  Horton  v.  McMurtry,  5  Hurl.  &  Nor.  667  ;  Singer  v.  McCormick,  4  W. 
&  S.  266. 

3  Turner  v.  Robinson,  5  B.  &  Ad.  789. 

*  See  Lacy  v.  Osbaldiston,  8  Car.  &  P.  80 ;  Ridgway  v.  Hungerford  Market 
Co.,  3  Ad.  &  El.  171 ;  Amor  v.  Fearon,  9  Ad.  &  El.  548. 

5  See  Callo  v.  Brouncker,  4  Car.  &  P.  518,  cited  Sniitii  Mast.  &  Serv.  73. 

6  Beeston  v.  Collycr,  2  Car.  &  P.  609. 

^  Rex  V.  Barton,  2  M.  &  S.  329.  »  Filleul  v.  Armstrong,  7  Ad.  &  El.  557. 

[  Qod  ] 


*  614  MASTER  AND    SERVANT. 

servant's  conduct,  he  is  justified  in  dismissing  the  servant  on 
that  account ;  as  if  an  apothecary's  assistant  should  frequently 
employ  an  ignorant  shop-boy  to  make  up  prescriptions  to  save 
himself  work.^  Herein  the  servant's  negligence  amounts  to 
a  breach  of  his  implied  undertaking. 

Subject  to  what  has  already  been  said  concerning  contracts 
in  restraint  of  trade,  we  may  add  that  a  servant  may  lawfully 
be  discharged  on  the  ground  that  he  is  engaging  in  another 
business  in  competition  with  and  calculated  seriously  to  injure 
that  of  his  employer.  Here  the  cause  of  discharge  would 
be  serious  detriment  to  the  master's  interests,  if  not  habitual 
negligence. 2 

*  615        *  If  good  ground  of  discharge  exists,  and  is  known 

to  the  master  at  the  time  of  dismissal,  it  is  sufficient  to 
justify  the  discharge,  although  he  chose  to  allege  some  other 
cause.'^  But  it  would  seem  that  if  the  master,  at  the  time 
he  discharged  the  servant,  did  not  know  of  any  act  of  mis- 
conduct on  the  servant's  part  which  would  justify  dismissal, 
the  mere  existence  of  such  misconduct  would  not  afterwards 
avail  in  his  own  justification.'^  And  a  waiver  of  the  right  to 
discharge  a  servant  may  be  presumed  from  circumstances. 
Thus,  where  a  servant  was  to  receive  payment  at  a  specified 
rate  if  he  continued  temperate  and  faithful  in  employer's 
service,  the  fact  that  he  was  occasionally  intemperate  and 
discontinued  service  for  short  periods  would  not  prevent  his 
recovering  the  stipulated  rate  for  the  time  actually  spent  in 
such  service,  if  he  was  received  back  into  it,  and  continued 
therein  without  any  new  arrangement  made  or  any  intimation 
that  the  old  one  was  terminated.^ 

A  contract  of  service,  like  all  other  contracts,  may  be  dis- 


1  Wise  V.  \Vilson,  1  Car.  &  K.  G62.  Though  here  the  relation  was  admitted 
to  be  not  strictly  that  of  servant  or  apprentice.  See  furtlier,  Harover  v.  Corne- 
lius, 5  C.  B.  N.  s.  236 ;  Stanton  v.  Bell,  2  Hawks,  145. 

2  Adams  Express  Co.  v.  Trego,  35  Md.  47  ;  supra,  pp.  609,  610. 

3  Smith  Mast.  &  Serv.  76,  and  cases  cited ;  Baillie  v.  Kell,  4  Bing.  N.  C.  638 ; 
Ridgway  i-.  Hungerford  Market  Co.,  3  Ad.  &  El.  171  ;  Mercer  v.  Whall,  5  Q.  B. 
447. 

<  Cussons  V.  Skinner,  11  M.  &  W.  161.  But  see  Spotswood  v.  Barrow,  5 
Exch.  110. 

*  Prentiss  v.  Ledyard,  28  Wis.  131. 
[  6o6  ] 


NATURE   OF   THE  RELATION.  *615 

solved  by  mutual  consent,  or  by  the  death  of  either  party,  or 
by  the  comj)letion  of  the  term  of  service.^ 

A  servant  who  occupies  premises  belonging  to  his  master  is 
not  presumed  to  occupy  as  tenant,  but  by  virtue  of  the  relation 
of  service  ;  and  if  such  be  the  case,  he  acquires  no  estate 
therein  by  the  performance  of  his  duties,  even  though  he  be 
also  allowed  to  use  the  premises  for  carrying  on  an  indepen- 
dent business  of  his  own.^  If  properly  dismissed  from  the 
service,  therefore,  he  has  no  right  to  remain  until  ejected 
upon  notice  as  a  tenant ;  but  the  termination  of  his  ser\'ice 
is  likewise  the  termination  of  his  right  to  the  premises. 

1  See  Thomas  v.  Williams,  1  Ad.  &  El.  685. 

2  White  V.  Bayley,  10  C.  B.  n.  s.  227  ;  Smith  Mast.  &  Serr.  40,  41. 


42 


[  657  ] 


*  616  MASTER  AND   SERVANT. 


*616  *  CHAPTER    11. 

MUTUAL    OBLIGATIONS    OF    MASTER    AND    SERVANT. 

Some  obligations  arising  from  the  relation  of  service  rest 
more  especially  upon  the  master  ;  others  again  more  especially 
upon  the  servant. 

First,  as  to  the  master.  A  moral  obligation  resting  upon 
every  master  whose  connection  -with  his  servant  is  a  very 
close  one,  the  latter  being  manifestly  on  an  inferior  footing, 
is  to  exert  a  good  influence,  to  regard  the  servant's  mental 
and  spiritual  well-being.  Positive  law  enjoins  the  same  duty 
in  a  variety  of  instances  with  regard  to  apprentices  and  work- 
men under  age,  by  requiring  their  masters  to  teach  them  to 
read,  write,  and  cipher,  to  see  that  they  attend  public  worship, 
and,  in  general,  to  take  due  care  of  their  morals.^ 

From  such  view  of  a  master's  obligation  comes,  doubtless, 
a  rule  which  some  deduce  from  the  old  books,  that  a  master 
has  the  common-law  right  to  chastise  his  servant  or  appren- 
tice moderately ;  but,  on  principle,  the  limitation  must  be  to 
those  servants  or  apprentices  under  age,  who,  by  positive  law, 
are  committed  somewhat  as  children  to  their  master's  keep- 
ing.2  The  right  is  denied  as  to  ordinary  servants  in  this 
country.-^  "  The  only  civil  remedies,"  says  an  English  writer, 
"  a  master  has  for  idleness,  disobedience,  or  other  dereliction 
of  duty,  or  breach  of  contract  on  the  part  of  a  servant,  are, 

either  to  bring  an  action  against  him,  or,  as  Puffendorf 
*  617    expresses  it, '  to  expel  *  the  lazy  drone  from  his  family, 

and  leave  him  to  his  own  beggarly  condition.'  "* 

1  See  stats.  N.  Y.,  Conn.,  &c.,  in  2  Kent  Com.  262,  and  n. 

2  See  Bac.  Abr.  tit.  Master  and  Servant  (N) ;  1  Bl.  Com.  428;  2  Kent  Com. 
260. 

3  Commonwealth  v.  Baird,  1  Aslim.  267. 

4  Smith  Mast.  &  Serv.  69;  Puff.  Law  Nature,  b.  6,  ch.  3,  §  4. 

[  658] 


MUTUAL   OBLIGATIONS   OF  MASTER   AND   SERVANT.  *  617 

As  to  necessaries,  Kent  pronounces  the  better  opinion  to  be 
that  the  master  is  not  bound  to  provide  even  a  menial  serA'ant 
with  medical  attendance  and  medicines  during  sickness. ^  And 
so  far  as  sjoecial  medical  attendance  furnished  an  adult  servant 
capable  of  taking  care  of  himself,  is  concerned,  the  rule  is  so 
settled ;  2  though  Lord  Kenyon,  and  perhaps  Lord  Eldon,  once 
thought  otherwise.^  Yet  a  master  is  legally  bound  to  provide 
medicines  for  his  apprentice.^  And  reference  to  the  authori- 
ties will  show  that,  as  to  domestic  servants,  courts  are  not 
indisposed  to  infer  authority  from  the  master's  own  conduct.^ 
The  duty  of  a  master  to  provide  food  and  other  necessaries 
rests  upon  contract,  express  or  implied  ;  and  it  was  the  Eng- 
lish doctrine,  as  expressed  in  1802,  that  neglect  to  furnish 
sufficient  food,  clothing,  or  lodging  to  any  infant  of  tender 
years  unable  to  provide  for  and  take  care  of  himself,  whether 
child,  apprentice,  or  servant,  so  as  thereliy  to  injure  liis  health, 
was  an  indictable  offence  ;  which  principle  a  later  English  stat- 
ute has  extended  even  further,  wherever  there  is  the  legal 
liability  to  provide  necessaries.^  It  may  be  presumed  that 
in  most  cases,  the  reasonable  value  of  necessaries  furnished  a 
servant  might  be  set  off  against  the  servant's  wages,  where 
the  master  was  not  legally  bound  to  supply  them. 

How  far  the  master  is  bound  to  find  work  for  his  servant 
has  sometimes  been  considered  in  the  courts.  The  legal 
principle  is  that  of  substantial  justice.  A  master  may  hire 
a  servant  for  a  certain  period,  and,  paying  the  wages  or  salary 
agreed  upon,  may  keep  him  in  sufficient  work  or  not  ;  but  he 
cannot  deprive  the  servant  of  his  full  compensation 
through  a  *  discontinuance  of  his  own  business,  or  *  618 
from    other  like  cause."     But   where  the  contract  of 

1  2  Kent  Com.  261. 

2  Smith  Mast.  &  Serv.  118-120;  Wennall  i^.  Adney,  3  B.  &  P.  247;  Sweet- 
water Co.  V.  Glover,  29  Geo.  309;  Clark  v.  Waterman,  7  Vt.  76. 

3  Scarman  v.  Castell,  1  Esp.  270;  Simmons  v.  Wilmott,  3  Esp.  93. 
♦  Reg.  V.  Smith,  8  Car.  &  P.  153. 

5  Cooper  V.  Pliillips,  4  Car.  &  P.  581  ;  Sellen  v.  Norman,  4  Car.  &  P.  80; 
FriencTs  Case,  Russ.  &  Ry.  C.  C.  22. 

6  14  &  15  Vict.  c.  11.     As  to  indicting  the  husband  rather  than  the  wife,  see 
Rex  V.  Saunders,  7  Car.  &  P.  277.     See  Smith  lAList.  &  Serv.  117. 

1  Aspdin  V.  Austin,  5  Q.  B.  671  ;  Elderton  v.  Emmens,  6  C.  B.   160;  Smith 
Mast.  &  Serv.  49,  50. 

[  659  ] 


*  618  MASTER   AND   SERVANT. 

hiring  merely  contains  an  undertaking  to  pay  certain  stipu- 
lated wages  in  proportion  to  the  work  done,  there  is  no  im- 
plied obligation  on  the  master's  part  to  find  work ;  though 
the  disposition  is  to  construe  contracts  of  doubtful  significance 
into  an  agreement  on  the  master's  part  to  enable  the  servant 
to  earn  regular  and  reasonable  wages. ^ 

It  is  the  duty  of  every  master  to  indemnify  his  servant  from 
the  consequences  of  lawful  acts,  done  in  pursuance  of  orders, 
which  the  servant  was  bound  to  obey.  And  as  to  an  act  not 
malum  in  se,  but  which  might  have  been  either  lawful  or  un- 
lawful, and  which  the  servant  was  induced  by  the  conduct  of 
his  master  to  believe  to  be  lawful,  the  rule  of  indemnity  like- 
wise applies.^  But  it  would  appear  that  for  an  act  malum  in 
se,  or  which  the  servant  knew  to  be  unlawful,  although  done 
by  him  in  obedience  to  his  master's  orders,  the  master  is  not 
bound  to  indemnify  his  servant ;  for  the  servant  should  have 
refused  obedience.^ 

It  is  likewise  the  duty  of  the  master  to  receive  into  his  ser- 
vice a  person  already  engaged,  and  if  he  fails  to  do  so,  he  is 
liable  in  damages.  And  yet  here  a  legally  biAding  contract 
would  have  to  be  shown  by  the  j)laintiff.'*  Nor  will  courts  of 
chancery  grant  injunction  to  compel  specific  performance,  ex- 
cept perhaps  in  cases  where  the  relation  exists  only  by  remote 
analogy  and  the  connection  between  master  and  servant  is 
not  close  ;  the  remedy  must  otherwise  be  left  to  the  common- 
law  courts.^  "  Consider,"  said  Lord  Chancellor  Truro,  "  what 
the  effect  would  be ;  how  is  it  possible  for  an  employer  or  an 
agent  to  go  on  in  the  intimate  connection  which  such  a 
*  619  contract  is  *  calculated  to  create  ?  "  ^  So,  too,  has  in- 
junction been  lately  refused  to  enforce  a  contract  of 
apprenticeship,  as  a  proceeding  without  precedent.'' 

1  See  Pilkington  v.  Scott,  15  M.  &  W.  657 ;  Hartley  v.  Cummings,  5  C.  B. 
247  ;  Smith  Mast.  &  Serv.  48,  50  ;  Sykes  v.  Dixon,  9  Ad.  &  El.  693. 

2  Collins  V.  Evans,  5  Q.  B.  830  ;  Rawlings  v.  Bell,  1  C.  B.  951 ;  Cro.  Jac.  468; 
Story  Agency,  §  339 ;  Smith  Mast.  &  Serv.  121. 

^  Smith,  ib. 

*  Bracegirdle  v.  Heald,  1  B.  &  Aid.  722 ;  Blogg  v.  Kent,  6  Bing.  614. 
»  Stocker  v.  Brockelbank,  20  L.  J.  Ch.  x.  s.  408.     See  Willis  v.  Childe,  13 
Beav.  117. 

6  Stocker  v.  Brockelbank,  ib.  ^  Webb  v.  England,  29  Beav.  44. 

[660] 


MUTUAL   OBLIGATIONS   OF   MASTER  AND   SERVANT.  *  619 

Two  remedies,  both  at  common  law,  are  open  to  every 
servant  who  has  been  wrongfully  discharged  from  his  master's 
employ :  one,  to  treat  the  contract  as  a  continuing  one,  and 
sue  in  damages  for  breach  thereof;  the  other  to  consider  it  as 
rescinded,  and  sue  his  master  on  a  quantum  meruit  for  the 
services  he  has  actually  rendered.^  Formerly,  it  was  thought 
that  he  had  a  third  remedy,  namely,  to  wait  till  the  termina- 
tion of  the  period  of  service,  and  then  sue  for  his  whole 
wages  in  assumpsit,  relying  on  the  doctrine  of  constructive 
service  ;^  but  it  would  appear  that  this  course  cannot  now  be 
adopted;  for  the  discharged  servant  is  bound  to  make  the 
best  use  of  his  time  and  seek  out  new  employment.^ 

The  first  is  the  remedy  usually  adopted.  To  sustain  this 
action,  the  servant  must  have  been  ready  and  willing  to  serve ; 
but  he  need  not  offer  to  do  so.  The  amount  of  damages 
which  he  should  recover  must  depend  upon  the  nature  of  the 
contract  and  the  wages  agreed  upon ;  the  jury  may  exercise 
a  large  discretion ;  and,  where  no  specific  wages  have  been 
agreed  upon,  the  measure  is  fixed  by  considering  what  is  the 
usual  rate  of  wages  for  the  employment  contracted  for,  and 
what  time  would  be  lost  before  another  situation  could  be 
obtained.*  The  second  form  of  action  treats  the  contract  of 
service  and  hiring  as  rescinded ;  and  the  ground  on  which 
the  servant  sues  is  one  apphcable  to  contracts  in  general ; 
namely,  that  when  one  party  to  a  contract  has  abso- 
lutely refused  to  perform  something  *  essential  on  his  *  620 
side  of  the  contract,  the  other  party  is  at  liberty  to 
terminate  it,  and  sue  for  services  rendered  under  a  quantum 

1  Lilley  v.  Elwin,  11  Q.  B.  755;  Blanche  v.  Colbum,  8  Bing.  14  ;  Colburn  v. 
Woodworth,  31  Barb.  381. 

2  Gaiulall  V.  Pontigny,  1  Stark.  157  ;  Collins  v.  Price,  5  Bing.  132 ;  2  Smith 
Lead.  Cas.  17,  n.  to  Cutter  v.  Powell. 

»  Smith  Mast.  &  Serv.  94,  n.,  and  cases  cited  ;  Fewings  v.  Tisdal,  1  Exch.  295; 
Beckham  v.  Drake,  2  Ho.  Lords  Cas.  6U6  ;  Slierman  v.  Champlain  Trans.  Co., 
31  Vt.  1G2  ;  Goodman  v.  Pocock,  15  Q.  B.  576  ;  Chamberlin  v.  Morgan,  68  Penn. 
St.  168 ;  Perry  v.  Simpson,  &c.,  Co.,  37  Conn.  520. 

*  See  Beckham  v.  Drake,  2  IIo.  Lords  Cas.  606  ;  Fewings  v.  Tisdal,  1  Exch. 
295;  Smith  v.  Thompson,  8  C.  B.  44;  Given  v.  Charron,  15  Md.  502;  Nations 
V.  Cudd,  22  Tex.  650;  Sherman  v.  Champlain  Trans.  Co.,  31  Vt.  162. 

[  661  ] 


*  620  MASTER  AND   SERVANT. 

meruit}  Where  this  remedy  is  elected  the  servant  can  only 
recover  wages  for  the  period  during  which  he  actually  served.^ 

But  while  the  servant  may  elect  either  of  the  two  remedies, 
he  cannot  pursue  them  together;  and  if  he  sues  on  both 
counts  in  his  action  he  must  take  the  verdict  upon  one  only.^ 

Wages  are  due  in  general  for  work  performed ;  and  al- 
though the  amount  of  wages  was  left  to  the  master,  a  reasona- 
ble remuneration  must  be  given >  But  the  mere  existence  of 
a  valid  contract  of  hiring  and  service  does  not  necessarily 
imply  a  contract  to  pay  wages  ;  for  board,  lodging,  clothes,  or 
the  opportunity  of  learning  business,  might  be  sufficient  com- 
pensation ;  particularly  in  case  of  the  young.^  So  any  em- 
ployer has  a  right  to  judge  for  himself  how  he  will  carry  on 
his  own  business  ;  and  workmen,  having  knowledge  of  the 
circumstances,  must  judge  for  themselves  whether  they  will 
enter  his  service.^ 

The  master  is  not  bound  to  pay  increased  wages  for  in- 
creased labor,  unless  he  has  contracted  to  do  so."  Nor  under 
an  ordinary  contract  of  hiring  by  the  day  is  the  person  hired 
bound  to  prolong  his  services  in  order  to  complete  any  partic- 
ular piece  of  work  on  which  he  may  happen  to  be  employed.^ 
Nor  is  there  any  new  implied  contract  to  pay  wages  on 

*  621    simple  *  dissolution  of  a  special  contract.^     The  action 

for  wages  should,  of  course,  be  brought  against  the 
person  by  or  for  whom  the  plaintiff  was  hired ;  and  to  ascer- 
tain this  is  not  always  easy.^^ 

1  2  Smith  Lead.  Cas.  17,  n.  to  Cutter  v.  Powell,  and  authorities  cited  ;  Smith 
Mast.  &  Serv.  99.     See  Goodman  v.  Pocock,  15  Q.  B.  576. 

2  Fewings  v.  Tisdal,  1  Exch.  295. 

3  Goodman  v.  Pocock,  15  Q.  B.  576 ;  Colburn  v.  Woodworth,  31  Barb.  381. 

4  Bryant  v.  Fhght,  5  M.  &  W.  114;  Peacock  v.  Peacock,  2  Camp.  45;  Law- 
son  V.  Perry,  Wright,  242.  But  see  Taylor  v.  Brewer,  1  M.  &  S.  290.  See 
Goodman  v.  Pocock,  15  Q.  B.  576 ;  Costigan  v.  Mohawk  R.  R.  Co.,  2  Denio,  609. 

5  Smith  Mast.  «&  Serv.  100,  n. ;  Rex  v.  Shinfield,  14  East,  541 ;  Davies  t;.Davies, 
9  Car.  &  P.  87 ;  Maltby  v.  Harwood,  12  Barb.  473 ;  Meredith  v.  Crawford,  34 
Ind.  399. 

6  Hayden  r.  Smitliville,  &c.,  Co.,  29  Conn.  548. 

T  Bell  V.  Drummond,  Peake,  45.  ^  Wyngert  v.  Norton,  4  Mich.  286. 

9  Lamburn  v.  Cruden,  2  Man.  &  Gr.  253. 
!«  See  Smith  Mast.  &  Serv.  104,  105,  and  cases  cited. 

[GG2] 


MUTUAL   OBLIGATIONS   OF   MASTER  AND   SERVANT.  *  621 

The  master  cannot  set  off  against  the  servant's  claim  for 
wages,  money  paid  by  him  to  his  own  medical  attendant, 
unless  the  servant  so  stipulated.^  Nor,  in  an  action  for  an 
infant's  wages,  money  advanced  for  articles  not  necessaries ; 
or  coach  fare  for  her  mother.^  Nor  can  he  set  off  against 
wages  a  claim  for  articles  lost  or  broken  by  carelessness  ;  he 
should  sue  in  a  cross-action.^  But,  in  an  action  of  compen- 
sation for  services,  the  employer  may  show,  by  way  of  recoup- 
ment of  damages,  loss  sustained  through  the  negligence  of 
the  person  employed."^ 

Modern  bankruptcy  acts  frequently  provide  that  servants 
or  clerks  shall  be  preferred  to  general  creditors  in  the  distri- 
bution of  assets.^  It  would  appear  that  the  bankruptcy  of 
the  master  does  not,  per  se,  dissolve  a  contract  of  hiring  ;  yet 
the  assignees  cannot  let  out  personal  services  for  hira.° 

The  death  of  the  master  discharges  his  servant ;  and,  ac- 
cording to  the  strict  ride  of  law,  it  would  appear  that  where 
the  contract  is  entire  for  a  year's  service,  and  neither  custom 
nor  statute  intervenes,  the  death  of  the  master  in  the  middle 
of  the  year  utterly  deprives  the  servant  of  compensation  for 
the  broken  period."  A  contract  of  apprenticeship,  in  so  far 
as  it  was  a  personal  contract,  is  also  terminated  by  the 
master's  *  death.^  But  the  rule  of  apportionment  is  *  622 
now  so  much  favored,  that  it  is  apprehended  to  be 
unlikely  that  a  construction  so  inequitable  would  in  this  day 
be  permitted  to  apply  to  contracts  which  left  the  intention  of 
the  parties  in  doubt  on  this  point.  And  custom  is  applicable, 
in  the  case  of  domestic  servants  at  least,  so  as  to  give  them 

1  Sellen  v.  Norman,  4  Car.  &  P.  80. 
■■2  Heilgeley  v.  Holt,  4  Car.  &'P.  104. 
'  LeLoir  c.  Bristow,  4  Camp.  134. 

4  Still  V.  Hall,  20  Wend.  51  ;  Pixler  v.  Nichols,  8  Iowa,  106 ;  English  v.  Wil- 
son, 34  Ala.  201.  See,  as  to  an  infant,  Meeker  v.  Hurd,  31  Vt.  639.  And  see 
Stoddard  v.  Treadvvell,  26  Cal.  294. 

5  See  12  &  13  Vict.  c.  100 ;  United  States  bankruptcy  act,  March  2,  1867,  §  27. 

6  See  Thomas  v.  Williams,  1  Ad.  &  El.  685 ;  Williams  v.  Chambers,  10  Q.  B. 
337. 

■J  1  Wms.  Ex'rs,  644 ;  Smith  Mast.  &  Serv.  HI.  But  see  Jackson  v.  Bridge, 
12  Mod.  650. 

8  Bac.  Abr.  tit.  Master  and  Servant  (G).  But  statutes  are  not  always  to  this 
effect.     Phoebe  v.  Jay,  1  Bre.  208. 

[6G3] 


*  622  MASTER  AND   SERVANT. 

wages  for  the  whole  time  served,  though  they  do  not  continue 
in  service  for  ayear.^  The  executors  or  administrators  of  the 
master  are  the  persons  to  whom  a  servant  must  look  for  such 
arrears ;  not  an  intermeddler  with  the  estate,  nor  kindred.^ 
In  some  States,  wages  of  domestic  servants  and  laborers  are 
made  preferred  debts ;  independently  of  statute,  it  is  not 
probable  that  they  are  so  entitled.^  Legacies,  if  actually 
bequeathed  to  servants,  are  sometimes  held  to  extinguish 
claims  against  tlie  master's  estate  for  wages.*  On  legal  prin- 
ciple, moreover,  when  a  servant  dies  in  the  middle  of  the 
term  of  his  engagement,  his  representatives  can,  it  seems, 
claim  nothing  ;  but  here  again  might  custom  apply  the  rule 
of  apportionment.^  So  where  the  servant  leaves  Avrongfully, 
or  is  dismissed  by  his  master  for  rightful  cause,  the  periodical 
pay-day  not  having  come  round,  he  can  claim  nothing  pro 
rata.^  Yet,  with  regard  to  the  common  case  of  a  hired  ser- 
vant, though  the  hiring  be  in  a  general  way,  the  understand- 
ing is  common  that  the  servant  shall  be  entitled  to  his 

*  623    *  wages  for  the  time  he  serves.'^     Unless  some  such 

rule  could  be  enforced,  the  stronger  party  would  be 
constantly  tempted  to  make  dismissal  a  pretext  for  refusing 
to  pay  to  the  weaker  the  little  pittance  which  was  justly  due. 
And,  again,  there  are  circumstances  from  which  a  waiver  of 
forfeiture  of  the  servant's  accrued  wages  will  be  presumed 
even  though  the  service  was  terminated  by  reason  of  the  ser- 
vant's misconduct.^ 

1  Cutter  V.  Powell,  6  T.  R.  320 ;  Smith  Mast.  &  Serv.  112. 

2  2  Wms.  Ex'rs,  822,  n.,  3d  ed.;  Welchman  v.  Sturgis,  13  Q.  B.  522. 
8  2  Wms.  Ex'rs,  ib.     But  see  2  Bl.  Com.  511. 

4  See  Booth  v.  Dean,  1  Myl.  &  K.  560;  Smith  Mast.  &  Serv.  343  et  seq.  But 
when  work  is  rendered  in  consideration  of  a  future  legacy,  and  the  legacy  is  not 
left,  the  servant  may  sue  on  a  quantum  meruit.  See  Nimmo  v.  Walker,  14  La.  Ann. 
581. 

i  Smith  Mast.  &  Serv.  115;  Cutter  v.  Powell,  6  T.  R.  320. 

6  2  Smith  Lead.  Cas.  17,  n.  to  Cutter  v.  Powell ;  Spain  i'.  Arnott,  2  Stark. 
236;  Turner  v.  Robinson,  6  Car.  &  P.  15;  Ridgway  v.  Hungerford  Market  Co., 
3  Ad.  &  Ei.  171  ;  Lane  v.  Pliillips,  6  Jones  (Law),  455  ;  Whitley  v.  Murray,  34 
Ala.  155;  Marsh  v.  Rulesson,  1  Wend.  514;  Beach  v.  Mullin,  5  Vroom,  343. 

f  See  remarks  in  Cutter  v.  Powell,  si(/)ra ;  Smith  Mast.  &  Serv.  116.  And  see 
Kessee  v.  Mayfield,  14  La.  Ann.  90  ;  Gates  v.  Davenport,  29  Barb.  160;  Massey 
V.  Taylor,  5  Cold.  447  ;  Costigan  v.  Mohawk  R.  R.  Co.,  2  Denio,  609.    . 

8  Patnote  v.  Sanders,  41  Vt.  66  ;  Prentiss  v.  Ledyard,  28  Wis.  131. 

[664] 


MUTUAL   OBLIGATIONS   OF   MASTER  AND    SERVANT.    *  623 

The  original  contract  of  hiring  may  be  changed  without 
any  new  express  contract  of  the  parties  ;  this  change  being 
inferred  from  the  facts,  and  the  master's  liability  for  wages 
fixed  accordingly.  Thus,  one  engaged  to  work  on  half  time 
and  receive  half  Avages,  may  have  been  actually  employed  on 
full  time,  and  so  may  gain  the  right  to  recover  full  wages.^ 
And  a  change  of  employers  having  occurred  by  reason  of 
some  change  of  business,  the  new  employers  may  render 
themselves  liable  for  the  wages  of  the  person  employed ; 
while,  on  the  other  hand,  the  original  employer  continues 
liable  to  the  person  employed,  if  the  latter  receives  neither 
actual  nor  constructive  notice  that  the  change  has  occurred.^ 

Where  the  performance  of  a  condition  is  prevented  by  the 
act  of  God,  it  is  excused.^  And  where  one  performs  services 
under  a  contract,  and  is,  before  the  expiration  of  the  full 
period,  disabled  by  sickness  or  inevitable  accident  from  com- 
pleting his  contract,  he  is  entitled  to  recover  as  upon  a  quan- 
tum meruit  for  the  period  of  such  disabilit3^*  Yet  it  seems 
that  where  illness  or  other  cause  renders  one  permanently 
incompetent  to  perform  his  contract,  this  is  a  sufficient  cause 
of  dismissal,  if  the  employer  choose  to  so  regard  it.^ 

Where  the  agreement  provides  that  either  party  may  ter- 
minate it  at  any  time,  the  servant  may  quit  at  any  time  on  his 
own  motion,  and  recover  on  the  contract  for  services  ren- 
dered.^ But  if  the  servant  agrees  to  work  for  a  given  time, 
with  the  privilege  of  leaving  if  dissatisfied,  he  cannot  recover 
if  he  leaves  without  alleging  dissatisfaction,  but  merely  to 
attend  to  other  business.^ 

If  the  contract,  though  for  a  certain  period,  be  terminated 
by  mutual  consent,  recovery  may  be  had  on  a  quantum  meruit 
for  the  services  actually  performed.^      And  work  accepted  by 

1  Edrington  v.  Leach,  34  Tex.  285. 

-  Perry  v.  Simpson,  &c.,  Co.,  37  Conn.  408. 

^  Cruise  Dig.  Condition,  41,  43. 

*  Wolfe  V.  Howes,  20  N.  Y,  197 ;  Cuckson  v.  Stones,  1  El.  &  EU248  ;  Fenton 
V.  Clark,  11  Vt.  557  ;  Seaver  v.  Morse,  20  Vt.  620. 

*  See  Harmer  v.  Cornelius,  5  C.  B.  n.  s.  236;  Cuckson  v.  Stones,  supra; 
Seaver  v.  Morse,  20  Vt.  620. 

6  Evans  i-.  Bennett,  7  Wis.  404.  ^  Monell  v.  Burns,  4  Denio,  121. 

8  Given  v,  Cliarron,  15  Md.  502 ;  Patnote  v.  Sanders,  41  Vt.  66. 

[  665] 


*  623  MASTER  AND  SERVANT. 

the  employer,  though  not  done  according  to  the  terms  of  the 

contract,  must  be  paid  for  at  its  fair  value,  not  exceeding  the 

stipulated  price. ^      So  a  person  employed  on  a  particu- 

*  624    lar  service  *  by  the  month  or  year,  may  have  a  right  to 

compensation  for  services  rendered  on  request,  out  of 
the  range  of  such  employment,  even  without  express  contract 
as  to  the  terms  of  payment.^  Conditions  precedent,  such  as 
submission  of  work  to  inspectors,  performance  according  to 
the  estimate  of  third  parties,  special  stipulations  and  the  like, 
may  enter  into  such  contracts.^  And  where  the  agreement 
was  that  the  value  of  labor  and  services  should  be  applied  in 
payment  of  land  for  the  purchase  of  which  no  written  con- 
tract had  been  made  out,  it  was  held  that  an  action  for  the 
value  of  the  labor  and  services  would  not  lie.* 

But  if  I  sell  land  to  another  to  be  paid  for  in  work  which 
he  presently  performs,  and  I  then  refuse  to  convey,  he  may 
recover  pay  for  his  work.^  So  it  was  held  where  the  defend- 
ant had  contracted  to  sell  the  plaintiff  a  house,  which  the 
j)laintiff,  with  the  defendant's  knowledge  and  without  objec- 
tion from  him,  put  in  repair,  and  also  performed  labor  in 
part-payment ;  and  where  afterwards  he  was  prevented  from 
completing  his  contract  by  the  fault  of  the  defendant ;  that 
he  might  recover  for  both  the  labor  performed  and  the  value 
of  the  improvements.^ 

*  625        *  Mr.  Starkie  observes  that  the  giving  a  character  of 

a  servant  is  one  of  the  most  ordinary  communications 
which  a  member  of  society  is  called  on  to  make,  but  is  a  duty 
of  great  importance  to  the  interests  of  the  public ;  and  in 
respect  of  that  duty  a  party  offends  grievously  against  the 
interests  of  the  community  in  giving  a  good  character  where 
it  is  not  deserved,  or  against  justice  and  humanity  in  either 
mjuriously  refusing  to  give  a  character,  or  in  designedly 
misrepresenting   one    to    the    detriment  of   the    individual.''' 

1  English^.  Wilson,  34  Ala.  201;  Dermott  v.  Jones,  23  How.  (U.  S.)  220. 

2  Cincinnati,  &c.,  R.  R.  Co.  v.  Clarkson,  7  Inil.  51)5. 

3  See  Baason  v.  Baehr,  7  Wis.  516 ;  Butler  v.  Tucker,  24  Wend.  447. 
*  Congdon  v.  Perry,  13  Gray,  3. 

5  Leach  v.  Rogers,  28  Geo.  247.  ^  Wright  v.  Haskell,  45  Me.  489. 

7  1  Stark.  Slander,  293. 


MUTUAL  OBLIGATIONS  OF    MASTER   AND   SERVANT.  *  625 

But,  in  the  absence  of  any  specific  agreement  to  that  effect, 
there  is  no  legal  obligation  binding  a  person  who  has  retained 
another  as  a  servant,  to  give  that  person  any  character  at  all 
on  dismissal ;  and  no  action  will  lie  against  him  for  refusing 
to  do  so.^  And  the  decisions  on  this  subject  fully  establish 
the  principle  that  representations  of  a  servant's  character, 
oral  or  written,  are  on  the  footing  of  privileged  communica- 
tions ;  and  that  wilful  misrepresentation  must  appear  on  the 
master's  part  to  render  him  liable ;  not  merely  wrong  and 
unfair  statements  made  in  good  faith  and  without  malicious 
intent.2 

But  a  guaranty  for  the  honesty  of  a  servant  is  sometimes 
given  for  the  master's  protection  ;  just  as  an  official  will  fur- 
nish his  bondsmen,  or  as  some  companies  guaranty  the  fidelity 
of  clerks  and  trustees.  In  such  cases,  since  the  rights  of 
a  guaranty  are  carefully  watched,  the  master  must  on  his 
part  exercise  due  caution.  Thus,  on  a  continuing  guaranty 
for  the  honesty  of  a  servant,  if  the  master  discovers  that  the 
servant  has  been  guilty  of  dishonesty  in  the  course  of  the 
service,  and  instead  of  dismissing  the  servant  he  chooses  to 
continue  him  in  his  employ,  without  the  knowledge  and  con- 
sent of  the  surety,  express  or  implied,  he  cannot  afterwards 
have  recourse  to  the  surety  to  make  good  any  loss  which  may 
arise  from  the  dishonesty  of  the  servant  during  the  subse- 
quent service.^ 

Second.,  as  to  the  servant.  Of  the  mutual  liabilities  of 
master  and  servant,  some  are  to  be  discussed  with  more 
especial  reference  to  the  latter  than  the  former.  Thus  the 
servant,  once  engaged  by  a  valid  contract  to  enter  his  em- 
ploj^er's  service,  cannot  refuse  or  neglect  to  do  so  without 
becoming  liable  in  damages  ;  though  whether  the  master  may 
care  to  pursue  his  remedy  is  another  matter.'^  The  same  may 
be  said  of  one  who,  without  sufficient  cause,  leaves  his  employ- 

1  Smith  Mast.  &  Serv.  222 ;  Carrol  v.  Bird,  3  Esp.  201. 

2  Smitli,  ib.  223-250,  ami  cases  cited  ;  Fountain  v.  Boodle,  3  Q.  B.  12  ;  Hodg- 
son V.  Scarlett,  1  B.  &  Aid.  240 :  2  Stark.  Slander,  58. 

3  Phillips  V.  Fo.xall,  L.  R.  7  Q.  B.  6GG.  As  to  the  master's  liabilities  for  the 
servant's  injuries,  see  infra,  eh.  4. 

4  See  Richards  v.  Hayward,  2  Man.  &  Gr.  574;  Smith  Mast.  &  Serv.  64. 

[667] 


*  625  MASTER  AND   SERVANT. 

ment  before  the  legal  termination  of  the  period  agreed  upon.^ 
That  the  service  is  unpleasant  or  tlie  labor  severe  would  not 
alone  justify  his  departure.^ 

*  626        *  While  performing  service  under  his  contract  the 

servant  is  bound  to  regard  the  interests  of  his  master. 
He  cannot,  it  would  appear,  solicit  his  master's  customers  into 
his  own  business,  so  long  as  his  engagement  lasts,  without 
rendering  himself  hable  to  action  ;  but  it  is  held  that  he  can 
do  so  when  the  service  is  at  an  end,  and  he  sets  up  for  him- 
self.^ He  must  account  to  his  employer,  like  all  other  agents, 
for  money  or  other  goods  received  in  the  line  of  duty  ;  and 
except  in  certain  cases,  cannot  set  up  the  right  of  a  third 
party  in  opposition  to  the  employer's  interests.* 

So  is  the  servant  liable  for  gross  negligence  in  the  care 
of  his  master's  property  intrusted  to  him  ;  though  not  for 
ordinary  accidents,^  Servants  are  also  liable  for  fraud  and 
misfeasance,  as  in  cases  of  simjDle  bailment  generally.  Suits 
of  this  sort,  strictly  applicable  to  domestic  servants,  are  ex- 
tremely rare ;  but  there  are  instances  to  be  found  in  the  old 
books.  Thus  it  is  said  that  if  a  man  deliver  a  horse  to  his 
servant  to  go  to  market,  or  a  bag  of  money  to  carry  to  Lon- 
don, which  he  neglects  to  do,  the  master  may  have  an  action 
of  account  or  detinue  against  him.^  An  employe  or  servant  is 
liable  in  a  suit  brought  by  his  master  to  indemnify  the  latter 
from  the  consequences  of  his  negligence  or  misconduct.'^ 
And  this,  too,  notwithstanding  the  concurrinsr  nesrli2:ence  of 

1  Bird  V.  Randall,  3  Burr.  1345 ;  Lees  v.  Whitcomb,  5  Bing.  34. 

2  Angle  V.  Hanna,  22  111.  429. 

!*  Nicliol  V.  Martyn,  2  Esp.  732.  Yet  we  presume  that  this  action  would  lie, 
if  the  servant  had  availed  himself,  to  his  master's  injury  and  his  own  profit,  of 
certain  peculiar  facilities  derived  under  the  contract  of  employment,  though  he 
waited  till  the  engagement  ended  before  making  use  of  them.  See  Adams 
Express  Co.  v.  Trego,  35  Md.  47. 

■»  See  Story  Agency,  §  217,  and  n. ;  Dixon  v.  Hamond,  2  B.  &  Aid.  310; 
Smith  Mast.  &  Serv.  67,  and  cases  cited  ;  Murray  v.  Mann,  2  Exch.  538  ;  Chees- 
man  v.  PLxall,  6  Exch.  341. 

5  Savage  v.  Walthew,  11  Mod.  135 ;  Bac.  Abr.  tit.  Master  and  Servant  (M), 
(I) ;  Smith  Mast.  &  Serv.  65. 

^  Bac.  Abr.  tit.  Master  and  Servant  (M). 

■?  Green  v.  New  River  Co.,  4  T.  R.  589;  Pritchard  v.  Hitchcock,  6  Man. 
&  Gr.  165 ;  Smith  Mast.  &  Serv.  66.  But  see  Colburn  r.  Patmore,  1  Or.,  M. 
&  R.  73. 

[  668] 


MUTUAL   OBLIGATIONS   OF   MASTER   AND   SERVANT.  *  626 

another  servant  not  made  a  defendant  with  him.^  And  a 
person  employed  to  do  work  requiring  skill  or  involving 
unusual  hazard,  and  undertaking  to  do  it  for  suitable  com- 
pensation in  a  skilful  or  careful  manner,  is  bound  to  so  do  it ; 
and  he  is  responsible  to  his  employer  for  injury  occasioned 
the  latter  by  the  negligent  manner  in  which  he  performed  the 
work.2 

The  old  writers  say  that  the  servant  may  justifv  a  battery 
in  the  necessary  defence  of  his  master  ;  and  the  master, 
as  the  *  weight  of  argument  goes,  may  do  the  same  on    *  627 
his  servant's  behalf.^ 

A  mere  agent  or  servant  is  a  competent  witness  for  bis 
principal  or  master,  from  public  convenience  or  necessity.* 

1  Zulkee  v.  Wing,  20  Wis.  408. 

'i  Willard  v.  Pinard,  44  Vt.  34  ;  Holmes  v.  Onion,  2  C.  B.  x.  s.  790  ;  Pixler  v. 
Nichols,  8  Iowa,  100 ;  English  v.  Wilson,  34  Ala.  201.  But  as  to  an  infant  ser- 
vant, see  Meeker  v.  Hurd,  31  Vt.  639. 

3  See  2  Kent  Com.  261 ;  1  Bl.  Cora.  429. 

*  Wainwright  v.  Straw,  15  Vt.  215;  Stringfellow  v.  Mariot,  1  Ala.  573;  Doe 
V.  Himelick,  4  Blackf.  494;  1  Greenl.  Evid.  §416;  1  Phill.  Evid.  10th  ed.  507 
et  seq. 

[669] 


*  628  MASTER  AND   SERVANT. 


*628  *  CHAPTER    III. 

BIGHTS    AND  LIABILITIES   OF    THE   SERTANT   AS  TO  THIRD    PERSONS. 

As  a  general  rule,  servants  are  not  liable  personally  on  con- 
tracts entered  into  by  tliem  on  behalf  of  their  masters.  Such 
a  principle  would  be  inconsistent  with  the  very  relation.  But, 
like  any  other  agent,  a  servant  may  make  himself  liable,  pro- 
vided he  contract  on  his  own  and  not  his  master's  behalf.^ 
Questions  of  this  sort  turn  upon  cu-cumstances ;  as  to  whom, 
for  instance,  the  credit  was  given.  But  if  there  be  a  wrong  or 
omission  of  right  on  the  serv^ant's  part ;  if,  for  instance,  he 
transcends  his  powers,  or  acts  without  authority,  like  all  other 
agents  he  becomes  personally  liable  to  the  person  with  whom 
he  deals  in  his  master's  name.^  For,  in  respect  to  such  con- 
tract, he  is  no  servant  at  all,  but  one  who  wilfully  or  inno- 
cently misrepresents  himself  as  such. 

Instances  of  this  principle  occur  in  the  every-day  transac- 
tions of  life.  A  broker  who  puts  his  OAvn  name  to  a  bill  of 
exchange,  without  words  to  imply  an  agency,  renders  himself 
personally  liable  to  a  stranger.^  But  the  receipt  of  a  servant 
is  the  receipt  of  his  master,  for  money  rightfully  paid  him  in 
the  course  of  business.^  And  a  sheriff's  deputy  is  not  liable 
to  a  judgment  creditor  for  money  collected  by  him  under  an 

execution  in  the  creditor's  favor.^ 
*  629        *  The  reason  of  the  general  rule  of  exemption  is,  that 
the  principal  or  master,  not  the  agent  or  servant,  shall 
answer  for  the  consequences  of  the  latter's  contract.     The 

i  Smith  Mast.  &  Serv.  194 ;  Story  Agency,  §  261 ;  Owen  v.  Gooch,  2  Esp. 
567  ;  Thomson  v.  Davenport,  9  B.  &  C.  88. 

2  Sniout  V.  Ilberry,  10  M.  &  "W.  1 ;  Paterson  v.  Gandasequi,  15  East,  62 ;  s.  c. 
2  Smith  Lead.  Cas.  358. 

8  Leadbitter  v.  Farrow,  5  M.  &  S.  345 ;  Jones  i-.  Littledale,  6  Ad.  &  El.  486. 

*  Bamford  v.  Shuttleworth,  11  Ad.  &  El.  926. 

5  Colvin  V.  Holbrook,  2  N.  Y.  126.  And  see  infra,  p.  633,  as  to  the  doctrine 
of  agency  applicable  to  the  servant's  acts  on  his  master's  behalf. 

[  670] 


RIGHTS   AND   LIABILITIES   OF  THE   SERVANT.        *  629 

servant   is  directly   responsible   to  his  master,  not   then   to 
strangers.^ 

But,  as  Lord  Kenyon  has  obser^^ed,  the  principle  does  not 
apply  to  cases  where  there  is  corruption  in  the  foundation  of 
the  contract,  or  it  is  bottomed  in  oppression  or  immorality .^ 
Where  money  is  obtained  by  means  of  trespass  or  tort ;  where 
a  servant  misappropriates  a  fund  intrusted  to  him  to  be  paid 
to  others  ;  in  these  and  similar  cases  it  has  been  held  that  the 
servant  is  suable  by  third  persons/^  If,  for  instance,  a  debtor 
sends  by  his  own  servant  money  which  he  owes  his  creditor, 
and  the  servant  refuses  to  deliver  it,  and  retains  it,  an  ac- 
tion for  the  money  may  be  maintained  by  the  creditor  against 
the  servant.  But  it  is  otherwise  if  the  debtor  counter- 
manded his  orders  and  received  the  money  back  from  the 
servant.* 

In  cases  of  tort,  the  rule  is  general  that  all  persons  con- 
cerned in  the  wrong  are  chargeable  as  principals.  For  a  mis- 
feasance, therefore,  or  positive  wrong,  which  affects  the  person 
or  property  of  another,  the  servant  cannot  shield  himself  by 
the  excuse  that  he  acted  merely  in  obedience  to  his  master's 
orders,  or  for  his  master's  benefit.^  It  is  said  that  in  such  a 
case  he  is  sued,  not  as  a  deputy  or  servant,  Imt  as  a  wrong- 
doer.^ 

But  a  distinction  is  sometimes  taken  between  misfeasance 
and  nonfeasance.     For  mere  negligence,   or  nonfeas- 
ance, the  servant  *  is  not  liable  to  a  stranger.'     Thus    *  630 
where  a  banker  is  employed  to  collect  a  note,  which 
he  puts  into  the  hands  of  another  banker,  tlirough  whose 

1  See  Shearm.  &  Redf.  Negligence,  128 ;  Smith  Mast.  &  Serv.  194  d  seq. 
•>■  Miller  v.  Aris,  3  Esp.  232 ;  Smith  Mast.  &  Serv.  204. 

3  Buller  V.  Harrison,  Cowp.  565 ;  Tiigman  v.  Hopkin,  4  Man.  &  Gr.  389  ; 
Howell  V.  Batt,  5  B.  &  Ad.  504. 
*  Lewis  V.  Sawyer,  44  Me.  332. 

5  Sands  v.  Child,  3  Lev.  352;  Lane  v.  Cotton,  12  Mod.  488;  Perkins  v. 
Smith,  1  Wils.  328  ;  Smith  Mast.  &  Serv.  213,  214 ;  Richardson  v.  Kimhall,  28 
Me.  463  ;  Bennett  v.  Ives,  30  Conn.  329 ;  Johnson  v.  Barber,  5  Gilm.  425.  See 
Hill  V.  Caverly,  7  N.  H.  215. 

6  See  Lane  r.  Cotton,  supra,  per  Lord  Holt ;  Hoffman  v.  Gordon,  15  Ohio  St. 
211. 

T  See  Lane  v.  Cotton,  supra,  per  Lord  Holt. 

[671] 


*  630  MASTER  AND   SERVANT. 

negligence  the  debt  is  lost,  the  creditor  cannot  sue  the  latter 
banker,  though  he  was  the  one  actually  at  fault.^  This  same 
principle  is  applied  in  Massachusetts,  to  protect  one  servant 
from  the  injurious  consequences  of  his  own  wrongful  acts  to 
a  fellow-servant  whenever  such  acts  amount  to  nothing  more 
than  mere  negligence  or  carelessness.^  So  the  servant  of  a 
carrier  is  not  generally  responsible  for  the  loss  of  a  parcel,  to 
the  owner,  who  should  rather  look  to  the  master.^  And  a 
servant  who  has  driven  a  stray  horse  from  the  highway  into 
his  master's  pasture,  for  the  purpose  of  preventing  it  from 
straying  on  cultivated  land,  does  not  become  liable  for  its 
conversion  by  turning  it  into  the  highway  again  by  direction 
of  his  master.* 

Perhaps  the  true  principle  is  to  refer  all  such  acts  of  the 
servant  to  the  scope  of  his  employment  in  the  particular  ser- 
vice of  his  master.  We  shall  presently  examine  the  doctrine 
of  respondeat  superior  with  reference  to  the  master,  under 
which  head  it  is  most  commonly  considered.  For  as  a  master 
is  more  likely  to  be  pecuniarily  responsible  than  his  servant, 
so  do  those  who  would  sue  for  injuries  incline  most  willingly 
to  make  the  master  the  defendant  in  their  suits  to  recover 
damages.^ 

Government  is  not  liable  for  the  torts  and  frauds  of  its 
agents.  Nor  are  public  officers  in  general  liable  for  the  mis- 
deeds of  their  subordinates.  Thus  the  Postmaster-General 
cannot  be  sued  for  the  loss  of  letters  in  the  post-office  through 
the  fault  of  his  agents.^  Public  policy  furnishes,  perhaps,  the 
strongest  reason  for  this  doctrine.  "  As  to  an  action  lying 
against  the  party  really  offending,"  Lord  Mansfield,  however, 
observed,  "  there  can  be  no  doubt  of  it ;  for  whoever  does  an 
act  by  which  another  person  receives  an  injury,  is  liable  in  an 

1  Montgomery  Bank  v.  Albany  Bank,  7  N.  Y.  459. 

2  Albro  V.  Jaquith,  4  Gray,  99.  And  see  Brown  v.  Lent,  20  Vt.  529.  But 
see  Phelps  v.  Wait,  30  N.  Y.  78. 

3  Williams  v.  Cranstoun,  2  Stark.  82.     See  Smith  Mast.  &  Serv.  213  et  seq. 
*  Wilson  V.  McLaughlin,  107  Mass.  587. 

5  See  infra,  p.  636. 

6  Whitfield  V,  Lord  Le  Despencer,  Cowp.  765.  Nor  should  he  be,  since  he  is 
but  the  servant  of  government:  the  common  employer  of  both  superior  and 
subordinate  officials.     See  4  Am.  Law  Rev.  1-17. 

[672] 


RIGHTS   AND   LIABILITIES   OF   THE   SERVANT.       *  630 

action  for  the  injury  sustained."  ^     And  in  several  instances' 
have  deputy-postmasters  been  sued  in  damages  for  their  own 
torts .^     So  are  certain  public  officers,  as  sheriffs  and  others, 
acting  in  a  purely  ministerial  capacity,  frequently  held  to 
answer  the  consequences  of  their  misconduct.^ 

For  his  unlawful  acts  knowingly  committed  in  his  master's 
service  a  servant  is  generally  criminally  answerable.* 

1  Cowp.  765.     And  see  Smith  Mast.  &  Serv.  219. 

•i  See  5  Burr.  2709,  2711,  2715.  3  Bac.  ALr.  tit.  Slieriff. 

*  State  V.  Walker,  16  Me.  241. 


43 


[673] 


*  631  MASTER  AND    SERVANT. 


*631  *  CHAPTER   IV. 

GENERAL   RIGHTS   AND    LIABILITIES    OF   THE    MASTER. 

In  this  chapter  we  shall  discuss, /rs^,  the  general  rights, 
second,  the  general  liabilities,  of  the  master  as  concerns  third 
persons  and  his  servant. 

First,  as  to  his  rights.  The  right  of  action  to  the  master 
for  personal  injuries  sustained  by  his  servant  is  recognized  in 
several  instances.'  This  right  grows  out  of  the  loss  of  ser- 
vice sustained  by  the  master,  and  the  same  principle  has  been 
noticed  with  reference  to  parents.  A  service  de  facto  is  suffi- 
cient in  all  such  cases .^  And  it  cannot  be  pleaded  in  defence 
that  the  acts  complained  of  amounted  to  felony,  and  that  the 
person  committing  them  had  not  been  prosecuted.  But  a 
master  cannot  maintain  an  action  for  injuries  which  cause  the 
immediate  death  of  his  servant.^ 

Again,  the  action  for  seduction  depends  upon  the  existence 
of  the  relationship  of  master  and  servant ;  and  the  loss  of 
service  gives  the  right  of  action.  This  action  is  usually 
brought  by  the  parent,  or  one  standing  in  the  stead  of  a 
parent ;  though  the  legal  remedy  is  not  perhaps  confined  to 
such  persons.^ 

For  enticing  away  or  harboring  one's  servant  the  common 
law  also  gives  the  right  of  action  against  the  offending  party  ; 
and  where  a  person,  after  notice,  continues  to  employ. another 
man's  servant,  that  other,  it  is  said,  may  maintain  an  action 

1  See  Duel  v.  Harding,  Stra.  595  ;  Hall  v.  Hollander,  4  B.  &  C.  660  ;  Hodsoll  v. 
Stallebrass,  11  Ad.  &  El.  801 ;  Dixon  v.  Bell,  1  Stark.  287. 

2  Smith  Mast.  &  Serv.  83-85,  and  cases  cited ;  Bac.  Abr.  tit.  Master  and 
Servant  (0). 

3  Osborn  v.  Gillett,  L.  R.  8  Ex.  88. 

*  See  Parent  and  Child,  supra ;  Smith  Mast.  &  Serv.  85  et  seq. 

[  674  ] 


EIGHTS  AND   LIABILITIES   OF   THE   MASTER.        *  631 

against  him,  although  at  the  time  he  hired  him  the  second 
master  did  not  know  that  he  was  hiring  another  man's  ser- 
vant ;  whence  it  follows  that  one  who  did  not  entice  may  yet 
be  liable  for  harboring.^  The  mere  attempt  to  entice 
a  servant  away,  *  no  damage  following,  does  not  en-  *  632 
title  the  master  to  maintain  an  action.^  Nor  will  the 
action  lie  after  the  master  has  recovered  from  the  servant  a 
stipulated  penalty  for  leaving  the  service  ;  ^  nor  for  inducing 
a  servant  to  leave  at  the  expiration  of  the  time  for  which  he 
was  hired,  though  he  had  no  previous  intention  of  leaving.^ 

A  bindins"  contract  of  service  between  the  servant  and  his 
first  master  must,  of  course,  be  shown.^  Nor  can  the  so- 
called  master,  where  two,  socially  equal,  occupy  a  relation  of 
constructive  service,  rely  with  certainty  upon  the  force  of 
language  to  help  him  through  his  suit  against  a  stranger.  In 
a  late  English  case,  some  doubts  were  expressed  whether  this 
remedy  was  to  be  extended  beyond  the  case  of  menial  ser- 
vants and  laborers  ;  whether,  in  fact,  the  higher  classes  could 
claim  its  benefit  at  all  in  matters  growing  out  of  their  mutual 
contracts.^  The  general  rule  of  the  law  is  certainly  to  confine 
its  remedies  by  action  to  the  contracting  parties,  and  to  dam- 
ages directly  and  proximately  consequent  on  the  part  of  him 
who  is  sued  ;  the  case  of  master  and  servant  being  excep- 
tional.' The  right  of  action  in  such  cases,  founded  upon  the 
pure  relation  of  service,  is  not  greatly  favored  in  this  country, 

1  Fawcet  v.  Beavres,  2  Lev.  63  ;  Smith  Mast.  &  Serv.  79  ;  Blake  v.  Lanyon, 
6  T.  R.  221 ;  Bird  v.  Ramlall,  3  Burr.  1352  ;  Reg.  v.  Daniel,  6  Mod.  99,  182. 
And  see  Lumley  v.  Gye,  2  Ell.  &  Bl.  216,  where  the  question  is  fully  discussed. 
But  laches  may  be  imputable  to  the  master.     Deuiyer  v.  Souzer,  6  Wend.  436. 

■^  Bird  V.  Randall,  3  Burr.  1352. 

3   Ibid. 

*  Nichol  V.  Martyn,  2  Esp.  734  ;  Boston  Glass  Manufactory  v.  Binney,  4  Pick. 
425. 

5  See  Smith  Mast.  &  Serv.  79,  and  cases  cited ;  Sykes  v.  Dixon,  9  Ad.  &  El. 
693  ;  Campbell  v.  Cooper,  34  N.  H.  49. 

6  Lumley  v.  Gye,  2  Ell.  &  Bl.  216.  This  suit  was  with  reference  to  the 
enticement  of  Wagner,  the  vocalist,  from  one  theatre  to  another.  The  majority 
of  the  court  (Coleridge,  J.,  dissenting)  thought  the  action  would  lie,  even  though 
the  parties  were  not  strictly  master  and  servant. 

^  See  Coleridge,  J.,  ib.     And  see  Ashley  v.  Harrison,  1  Esp.  48. 

[675] 


*  632  MASTER   AND   SERVANT. 

though  it  is  recognized.^     And  the  enticement  of  a  servant  in 
some  States  renders  one  hable  to  prosecution.^ 

The  old  rule  was  that  a  master  deprived  of  the  services  of 

an  apprentice  or  servant  by  the  enticement  or  harboring  of 

another,  might   sometimes  waive  the  tort,  and  sue  for  the 

wages  due  from  the  second  master :  the  maxim  being,  that 

the  acquisition  of  the  servant  was  the  acquisition  of 

*  633    the  master ;  but,  as  *  Mr.  Smith  has  observed,  this 

rule  applied  more  strictly  during  the  existence  of  vil- 
lenage.^  Most  of  the  cases  to  sustain  this  principle  relate  to 
apprentices  in  a  seafaring  way ;  but  it  is  thought  to  extend 
to  servants  in  general.'* 

What  a  servant  may  acquire  during  the  relation  of  service 
entirel}''  without  the  legitimate  consideration  of  such  service, 
does  not  belong  to  the  master.  This  rule  must  be  reasonably 
and  beneficially  applied  according  to  circumstances.  One  may 
become  bound  by  a  contract  for  hiring,  but,  if  not  an  absolute 
slave,  he  may  generally  gain  something  for  himself  otherwise 
if  he  choose.  Thus,  if  one  in  the  service  of  another,  not 
employed  to  invent,  make  an  invention,  the  patent-right  is 
his,  and  not  his  master's.^  And  the  same  rule  applies  to  sal- 
vage money,  the  result  of  extraordinary  service  on  his  part.^ 
But  the  master  shall  have  the  advantage  of  his  servant's  con- 
tracts as  to  matters  within  the  scope  of  the  service.' 

It  is  held  in  New  Hampshire,  that  if  a  servant,  having  his 
master's  monej^  for  a  specific  purpose,  make  use  of  it  in  jDcr- 
forming  a  service  which  he,  without  his  master's  privity,  has 
undertaken  for  another,  the  master  cannot,  by  afterwards 
adopting  the  servant's  act  as  his  own,  charge  that  other  party 
upon  the  contract  made  by  him  with  the  servant.^ 

1  See  Scidmore  v.  Smith,  13  Johns.  322  ;  Peters  v.  Lord,  18  Conn.  337 ; 
Salter  v.  Howard,  43  Geo.  601  ;  Burgess  i'.  Carpenter,  2  S.  C.  n.  s.  7. 

2  Bryan  v.  State,  44  Geo.  328.  ^  See  Smith  Mast.  &  Serv.  80,  81. 
*  Co.  Litt.  117  a,  n.;  Smith,  sHp;a,  and  cases  cited;  Lightly  y.  Clouston,  1 

Taunt.  112. 

5  Blcxam  v.  Elsee,  1  Car.  &  P.  558.     But  see  Smith  Mast.  &  Serv.  82. 

^  Mason  v.  Tlie  Blaireau,  2  Crancli,  240. 

"  Damon  v.  Osborn,  1  Pick.  481. 

8  Webb  V.  Cole,  20  N.  H.  490.  As  to  a  master's  right  to  reserve  wages  when 
served  with  garnishment  or  trustee  process,  see  Davis  v.  Meredith,  48  Mis.  263. 

[  676  ] 


EIGHTS   AND   LIABILITIES  OF   THE   MASTER.        *  633 

Second.  As  to  the  master's  liabilities.  A  master  is  liable 
for  the  contract  of  his  servant,  made  in  the  course  of  his 
employment  about  his  master's  business.^  Supposing  I  have 
a  servant,  and  that  servant  is  in  the  habit  of  purchasing  the 
family  supplies,  in  the  course  of  his  usual  emplo3'ment ;  his 
contracts  for  such  purchases  will  Ijind  me.  But  is  that  simply 
because  he  is  my  servant  ?  If  his  usual  employment  l)e  upon 
the  farm,  and  I  never  gave  him  authority  to  make  purchases, 
he  cannot  bind  me  by  going  to  the  store  merely  because  he 
happens  to  be  my  servant.  So  I  can  authorize  others  to  pur- 
chase family  supplies  :  it  may  be  m}'  wife,  or  my  child, 
or  any  friend.  In  all  *  such  cases,  then,  I  am  bound,  *  634 
because,  as  is  commonly  said,  I  have  constituted  an- 
other my  agent,  not  strictly  because  I  have  a  servant.  No 
power,  therefore,  can  be  inferred  from  the  relation  of  master 
and  servant,  it  is  said,  by  which  the  latter  can  bind  the  for- 
mer.2  Mr.  Smith  states  the  princij^le  more  correctl}',  \vhen 
he  says  that  the  power  Avhich  a  servant  possesses  of  binding 
his  master  by  contracts  is  founded  upon,  or  rather  is  the  basis 
of,  the  general  law  of  principal  and  agent.^  For  in  truth,  it 
would  seem  that  the  relation  of  master  and  servant  is  the 
older  at  the  law.  However  this  may  be,  the  rule  is  properly 
stated,  at  the  present  day,  to  be  that  the  servant  can  only 
bind  his  master  as  his  agent ;  and  this  on  the  principle,  com- 
mon to  both  branches  of  the  law,  that  the  act  of  the  servant 
or  agent  is,  in  fact,  the  act  of  his  master  or  principal :  the 
maxim  being.  Qui  facit  ijer  alium  facit  per  se^ 

The  well-known  rules  of  agency  need  not,  then,  be  set  out 
here  at  any  length.  We  only  observe  that  the  contract  of  a 
servant,  in  order  to  Ijind  tlie  master,  must  be  Avithin  the  scope 
of  his  authority  ;  tliat  this  authority  may  be  expressly  con- 
ferred or  may  be  implied  from  the  master's  conduct  ;  that 
subsequent  ratification  of  the  servant's  acts  is  as  binding  as  a 
previous  autliority ;  that  the  authority  of  a  servant  is  coex- 
tensive with  his  usual  employment ;  and  that  the  scope  of  his 

1  Helyear  v.  Hawke,  5  Esp.  72.  2  Moore  v.  Tickle,  3  Dev.  244. 

i»  Sniitli  Mast.  &  Serv.  122.     See  Bac.  Abr.  tit.  Master  and  Servant  (K). 
*  IL.     And  see  Co.  Litt.  52  a  ;  Story  Agency,  §!^  7,  8. 

[677] 


*  634  MASTER  AND    SERVANT, 

authority  is  to  be  measured  by  the  extent  of  his  employment.^ 
All  these  principles  the  reader  will  expect  to  find  much  more 
fully  illustrated  in  any  treatise  upon  agency  than  in  one  which 
professes  to  take  up  simply  the  law  of  the  domestic  relations. 
There  may  be  servants  for  a  variety  of  purposes ;  there  may 
be  agents,  too,  for  a  variety  of  purposes  ;  and  between 

*  635    servant  and  agent  is  as  yet  *  no  strict  line  of  legal 

demarcation.  In  general,  a  master  is  not  considered 
liable  on  the  contract  of  his  servant,  unless  the  servant,  at 
the  time  he  entered  into  it,  assumed  to  act  as  his  agent.^  But 
this  principle  is  not  artificially  applied,  the  question  of  actual 
intent  prevailing.^ 

Where  a  servant  is  employed  to  transact  business,  and  has 
no  particular  orders  with  reference  to  the  manner  in  which 
that  business  is  to  be  transacted,  he  is  considered  as  invested 
with  all  the  authority  necessary  for  transacting  the  business 
intrusted  to  him  and  Avhich  is  usually  intrusted  to  agents 
employed  in  similar  matters.  In  every  case,  such  authority 
embraces  the  appropriate  means  to  accomplish  the  desired 
end.^  Thus,  a  servant  sent,  without  money,  to  buy  goods, 
has  implied  authority  to  pledge  his  master's  credit.^  And  in 
numerous  instances  the  master  has  been  considered  bound  by 
his  servant's  warranty,  that  being  usual  in  effecting  certain 
sales  ;  though  not  where  the  warranty  is  subsequent  to  the 
sale  and  not  part  of  the  same  transaction  ;  ^  for  the  rule  is 
general  that  acts  and  admissions  by  the  servant  out  of  the 
course  of  his  employment  will  not  bind  the  master.'' 

1  See  Story  Agency,  §§  74,  75  ;  ib.  §  239  et  seq. ;  Bird  v.  Brown,  4  Exch. 
798 ;  Smith  Mast.  &  Serv.  123-12G ;  Co.  Litt.  207  a  ;  Bac.  Abr.  tit.  Author- 
ity (B) ;  2  Kent  Com.  612  et  seq. 

'•i  Wilson  V.  Tumman,  6  M.  &  G.  236  ;  4  Inst.  317  ;  Walker  v.  Hunter,  2  C.  & 
B.  834. 

3  See  Trueman  v.  Loder,  11  Ad.  &  El.  594,  595;  Smith  Mast.  &  Serv.  132. 

*  Story  Agency,  §§  60,  85 ;  Smith  Mast.  &  Serv.  128  ;  Cox  v.  Midland  Coun- 
ties R.  R.  Co.,  3  Exch.  278  ;  Howard  v.  Baillie,  2  H.  Bl.  618. 

5  Tobin  V.  Crawford,  9  M.  &  W.  718.    And  see  Weisger  v.  Graham,  3  Bibb,  313 . 

•^  See  Murray  v.  Mann,  2  Exch.  538  j  Alexander  v.  Gibson,  2  Campb.  555 ; 
Helyear  v.  Hawke,  5  Esp.  72  ;  Woodin  v.  Burt'ord,  2  Cr.  &  M.  391 ;  Saunderson 
V.  Bell,  2  Cr.  &  M.  304 ;  and  otiier  cases  cited  in  Smith  Mast.  &  Serv.  129,  130. 

^  Fairlie  v.  Hastings,  10  Ves.  128;  Story  Agency,  §  136;  Garth  v.  Howard, 
8  Bing.  451. 

[  678] 


EIGHTS  AND   LIABILITIES   OF   THE   MASTER.        *  635 

There  is  an  important  legal  distinction  between  general 
agents  and  special  agents  ;  hence  comes  the  rule  that  wher- 
ever a  master  has  held  out  his  servant  as  his  general  agent, 
whether  in  all  kinds  of  business,  or  in  transacting  business  of 
a  particular  kind,  the  master  will  be  bound  by  the  servant's 
act,  if  within  the  scope  of  his  usual  employment,  not-  . 
withstanding  *  the  servant  has  acted  contrary  to  his  *  636 
master's  orders.^  This  is  a  principle  of  frequent  appli- 
cation.2  g^^^  where  a  servant  is  employed  by  his  master  to 
act  for  him  in  a  single  transaction,  he  must  be  regarded  as  the 
special  agent  of  his  master  ;  and  in  such  case  it  is  incumbent 
upon  every  one  dealing  with  him,  who  wishes  to  charge  his 
master  upon  his  contracts,  to  inquire  into  the  extent  of  his 
authority ;  as,  should  he  exceed  it,  his  master  will  not  be 
bound. ^ 

Since  the  nature  of  the  usual  employment  of  a  servant  is 
the  measure  of  his  implied  authority,  it  follows  that  this 
authority  can  neither  be  limited  by  the  private  instructions 
of  the  master  nor  controlled  by  any  secret  agreement  between 
him  and  hi^  servants  "  If  this  could  be  done,"  says  a  recent 
writer,  "  in  what  a  perilous  predicament  would  the  world 
stand  in  respect  of  their  dealings  with  persons  who  may  have 
secret  communications  with  their  principal.  There  would  be 
an  end  of  all  dealing  but  with  the  master."  *  But  if  a  third 
party  knows  of  private  agreements  or  instructions,  he  cannot, 
of  course,  charge  the  master  upon  any  inconsistent  contract; 
for  it  enters  as  an  element  into  his  own  dealings  with  tliat 
servant.^ 

Hitherto  we  have  spoken  of  the  master's  liability  on  his 
servant's  contracts  ;  now  we  come  to  his  civil  liability  for  the 
servant's  torts.  This  subject  receives  at  the  present  day 
•more  attention  in  the  courts  than  any  other  topic  of  the  so- 

1  Smitli  Mast.  &  Serv.  132-135 ;  Story  Agency,  §§  120,  127. 

2  See  Nickson  v.  Brohan,  10  Mod.  109  ;  Kimetl  i-.  Sanipayo,   1  Car.  &  P. 
255 ;  Jordan  i^.  Norton,  4  M.  &  W.  155. 

3  Smith  Mast.  &  Serv.  137 ;  Ward  v.  Evans,  2  Ld.  Raym.  928 ;  Waters  v. 
Brogden,  1  Y.  &  J.  457. 

4  Smith  Mast.  &  Serv.  133;  10  Mod.  110. 

s  Howard  v.  Braithwaite,  1  Ves.  &  B.  209. 

[679] 


*  636  MASTER   AND    SERVANT. 

called  law  of  master  and  servant ;  perhaps  more  than  all  the 
other  topics  together.  Here  we  find  not  only  the  maxim  qui 
facit  per  aliuni  facit  per  se  cited  (so  well  applied  to  the  law 
of  agency),  but  that  other,  more  strictly  appropriate  to  the 
present  relation,   respondeat  siqyerior:     The  universal 

*  637    rule  is  that  whether  *  the  act  of  the  servant  be  of 

omission  or  commission,  whether  his  negligence,  fraud, 
deceit,  or  perhaps  even  wilful  misconduct,  occasion  the  injury, 
so  long  as  it  be  done  in  the  course  and  scope  of  his  employ- 
ment, his  master  is  responsible  in  damages  to  third  persons.^ 
And  it  makes  no  difference  that  the  master  did  not  give 
special  orders ;  that  he  did  not  authorize,  or  even  know,  of 
the  servant's  act  or  neglect ;  for  even  though  he  disapproved 
or  forbade  it,  so  long  as  the  act  was  done  in  the  course  of  the 
servant's  employment,  he  is  none  the  less  liable.^ 

So  far  is  this  doctrine  carried  that  a  master  is  even  held 
liable  for  an  injury  occasioned  by  what  might  to  many  minds 
appear  the  wanton  and  violent  conduct  of  his  servant  in  the 
performance  of  an  act  within  the  scope  of  his  employment. 
Thus  where  the  conductor  of  an  omnibus,  in  removing  there- 
from a  passenger  whom  he  deemed  to  be  intoxicated,  forcibly 
dragged  him  out  and  threw  him  upon  the  ground,  so  that  he 
was  seriously  injured,  it  was  held  that  the  proprietor  was 
liable.^  And  for  a  servant's  assault  in  the  performance  of 
the  service,  the  master,  though  in  no  manner  consenting  or 
aiding,  has  been  held  liable.*  We  should  say,  however, 
that  a  projDcr  analj'sis  of  the  cases  where  a  master  is  held 
responsible  for  his  servant's  torts,  would  show  either  that 
the  servant  was  negligent  within  the  scope  of  his  employ- 
ment ;  or  else  that  he  displayed  a  wanton  or  reckless  pur- 
pose to  accomplish  his  master's  employment  in  a  wrongful 
manner.'^ 

Whether  an  act  amounts  to  negligence,  misfeasance,  and 
the  like,  is  to  be  determined  in  each  case  by  its  own  circum- 

1  Story  Agency,  §  452  ;  Smith  Mast.  &  Serv.  151,  152  ;  Shearm.  &  Redf.  Neg- 
ligence, <J5. 

2  Smith,  ib. 

'  Seymour  v.  Greenwood,  7  Hurl.  &,  Nor.  355. 

*  Wade  V.  Thayer,  40  Cal.  578.  *  See  Howe  v.  Newmarch,  12  Allen,  49. 

[  680] 


RIGHTS   AND   LIABILITIES   OF   THE   MASTER.        *  637 

stances.!  The  injury  occasioned  may  be  to  person  or  property. 
But  among  the  many  instances  which  have  been  considered 
as  falling  within  the  rule  are  these  :  Negligent  driving  by  a 
servant.2  The  negligent  kindling  of  a  fire.^  Piling  up  wood 
improperly."^  Mismanagement  of  a  boat  whereby  another  is 
injured.^  Fraud  committed  in  the  course  of  the  servant's 
employment,  according  to  some  authorities.^  Mistaken  arrest 
under  certain  circumstances."  Infringement  of  a  patent  by 
workmen.^  Unskilful  workmanship.^  If  the  owner  of  a  dog 
appoints  a  servant  to  keep  it,  the  servant's  knowledge  of  the 
dog's  ferocity  is  the  knowledge  of  the  master.!*^  The  rule 
may  apply  hkewise  where  a  servant  leaves  the  bars  down,  or 
a  gate  or  door  negligently  open.^^  Or  throws  things  out  of 
a  window  carelessly  upon  a  passer  by.^^  And  it  is  to  be  ob- 
served that  the  master's  responsibility  is  not  confined 
to  those  who  work  under  his  *  immediate  supervision,  *  638 
but  extends  to  all  others  wdiom  he  selects  to  do  any 
work  or  superintend  any  business  for  him.^^ 

A  master  is  liable,  though  the  act  of  the  servant  was  not 
necessary  for  the  proper  performance  of  his  master's  orders,  or 
was  even  contrary  thereto ;  so  long  as  the  servant  was  acting 
in  substantial  execution  of  his  master's  orders. ^^^  Perhaps  this 
may  not  readily  be  understood.  But  take  the  common  in- 
stance of  negligent  driving  ;  where,  we  shall  suppose,  a  coach- 


»  See  Crofts  v.  Waterhouse,  3  Bing.  319. 

-  Michael  v.  Alestree,  "2  Lev.  172  ;  Jones  v.  Hart,  2  Salk.  441. 
3  Filliter  v.  Phippard,  11  Q.  B.  347.     Tliis  principle  is  frequently  applied  to 
fires  caused  by  locomotive  engines.     See  Smith  Mast.  &  Serv.  153,  n. 
*  Harlow  v.  Humiston,  6  Cow.  189. 

5  Page  V.  Defries,  7  Best  &  S.  137  ;  Huzzey  v.  Field,  2  Cr.,  M.  &  R.  432. 

6  Story  Agency,  §  204 ;  Southern  v.  How,  Cro.  Jac.  471. 

■J  Moore  v.  Metropolitan  R.  R.  Co.,  L.  R.  8  Q.  B.  36.  But  see  Allen  v.  Lon- 
don, &c.,  R.  R.  Co.,  L.  R.  6  Q.  B.  65. 

8  Betts  V.  De  Vitre,  L.  R.  3  CIi.  429. 

9  Gilmartin  v.  New  York,  55  Barb.  239. 

10  Baldwin  v.  Casella,  L.  R.  7  Ex.  325. 

11  See  Chapman  v.  New  York,  &c.,  R.  R.  Co.,  33  N.  Y.  369. 

12  Corrigan  v.  Union  Sugar  Refinery,  98  Mass.  577. 

1^  Rex  V.  Hoseason,  14  East,  605 ;  Laugher  v.  Pointer,  5  B.  &  C.  554 ;  Way- 
land  i;.  Elkins,  1  Stark.  272.  As  if  he  sliould  en)i)l(>y  a  bailiff,  steward,  or  super- 
intendent.    How  far  this  principle  might  be  extended,  it  is  useless  to  speculate 

1*  Smith  Mast.  &  Serv.  157. 

[681] 


*  638  MASTER  A^^)  servant. 

man  or  driver,  injudiciouslr  or  recklessly,  or  even  intentionallj', 
but  not  wantonly,  turns  or  races  his  hoi-ses  so  as  to  run  down 
another's  carriage.^  Unless  the  rule  of  liability  were  carried 
to  such  an  extent,  we  should  find  mastei^s  constantly  escap- 
ing the  consequences  of  their  servants'  behavior. 

But  a  master  is  not  responsible  for  any  act  or  omission  of 
his  servants  which  is  not  connected  with  the  business  in 
which  they  serve  him,  and  does  not  happen  in  the  course  or 
the  scope  of  their  employment.-  Beyond  the  scope  of  his 
authority,  the  servant  is  as  much  a  stranger  as  any  other 
pei-son.  Thus,  where  a  servant  is  employed  only  to  haiTOW 
one  field  and  watch  a  fire  in  another,  and  he  undertakes 
besides  to  biu-n  a  pile  of  rubbish. ^  So,  where  one  is  author- 
ized to  distrain  cattle  trespassing  on  his  master's  land,  drives 
the  horses  of  a  neighbor  on  to  the  land  and  then  distrains 
them.^  We  should  hardly  expect  to  see  the  rule  of  respondeat 
superior  apphed  where  a  wrong  is  done  wholly  for  one's  own 
purpose  and  in  his  own  concerns,  disconnected  from  the  em- 
ployment of  the  master  in  question.^ 

*  639        *  Some  cases  might  lead  to  the  belief  that  a  master 

is  liable  for  the  careless  driving  of  his  servant,  because 
he  intrusts  him  with  the  carriage.^  This  is  not  correct.  The 
true  principle  is  that,  while  a  master  is  liable  where  the  ser- 
vant is  in  the  line  of  his  emplovment  at  the  time  of  commit- 
tin<y  an  iniurv.  thous:h  he  mav  oo  out  of  the  wav,  and  do  his 
work  in  an  improper  and  roimdabout  manner,  yet  this  liability 
hardly  extends  further.    Take,  for  example,  a  late  case,  where 

1  Croft  V.  Alison,  -i  B.  &  Aid.  590 ;  Joel  r.  Morrison,  6  Car.  &  P.  501  ;  Sleatli 
V.  Wilson,  9  Car.  &.  P.  607.  And  see  Illidge  v.  Goodwin,  5  Car.  &  P.  190  ; 
McDonald  v.  Snelling,  14  Allen.  290. 

-  Smith  Mast.  &  Serv.  160 ;  Shaw  i-.  Reed,  9  W.  i  S.  72;  Harriss  v.  Mabry, 

1  Ired.  240;  Lowell  v.  Boston  &  Lowell  R.  R.  Co..  2-3  Pick.  24;  Shearm.  & 
Redf.  Negligence.  69;  Foster  r.  Essex  B:mk.  17  iLass.  500;  Brown  i-.  Purviance, 

2  Har.  &  Gill,  316. 

»  Wilson  v.  Peverly.  2  N.  H.  -546.     And  see  Oxford  v.  Peter,  28  III.  434. 

*  Lyons  v.  Martin.  S  Ad.  i  El.  512 :  Gooiiman  r.  Kennell,  3  Car.  &  P.  167 ; 
Lamb  v.  Lady  Palk,  9  Car.  i  P.  629;  M'Kenzie  v.  McLeod,  10  Bing.  3S5  :  Ox- 
ford r.  Peter,  28  III.  434. 

*  Stevens  r.  Armstrong,  G  N.  Y.  435;  Yates  v.  Squires,  19  Iowa,  26;  Little 
Jliami  R.  R-  Co.  r.  Wetmore,  19  Ohio  St.  110. 

6  Sleath  r.  Wilson,  9  Car.  &  P.  607. 

[682] 


RIGHTS   AND   LIABILITIES   OF  THE   MASTER.        *  639 

the  master  sent  his  carman  and  clerk  to  deliver  some  wine  and 
bring  back  some  pmpty  bottles,  and  on  their  return,  when 
about  a  quarter  of  a  mile  from  the  office,  the  carman,  instead 
of  doing  as  he  was  bidden,  and  putting  up  the  horses,  was 
induced  by  the  clerk  to  drive  in  quite  another  direction  on 
business  of  the  clerk's,  and  thus  injured  a  person  in  the  street ; 
here  the  master  was  held  not  to  be  liable. ^  The  distinction  in 
such  cases  is  not  always  clear,  as  their  examination  will  show. 

It  has  been  ruled  that  a  servant  could  have  no  implied 
authority  to  do  that  which  it  would  not  be  lawful,  under  any 
circumstances,  for  either  him  or  his  employer  to  do.^  Nor 
does  presumption  of  authority  arise  from  the  fact  of  the  act 
being  done  for  the  master's  benefit,  or  from  his  silence  with 
regard  to  it.^  Xor,  on  general  principles,  is  the  master  liable 
if  the  person  injured  was  not  in  the  exercise  of  ordinarj-  care 
at  the  time  of  the  injury,  and  so  aided  in  effect  in  bringing 
on  his  suffering.*  Many  decisions  indicate  the  doctrine 
that  for  wilful  acts  of  the  servant  the  master  is  not  re- 
sponsible ;  but  this  exemption  usually  seems  to  rest  in 
reality  upon  the  *  ground  that  the  acts  complained  of  *  640 
were  not  done  in  the  coui-se  and  scope  of  the  servant's 
employment.^ 

We  find,  however,  many  cases  where  a  distinction  is  main- 
tained at  the  common  law  between  actions  on  the  case  for 
negligence,  unskilfulness,  and  carelessness,  and  actions  for 
trespass,  so  far  as  concerns  the  master's  liability  to  third 
parties.  In  the  latter  class  of  cases,  the  principle  of  master 
and  servant  is  considered  not  to  apply  ;  for  the  master  is  not 
responsible  unless  he  command  the  act  or  concur  in  it ;  while, 

1  Storey  v.  Ashton,  L.  K.  4  Q.  B.  476.  And  see  Mitchell  i'.  Crassweller,  13 
C.  B.  237 ;  16  E.  L.  &  Eq.  448  ;  Wliatnian  v.  Pearson,  L.  R.  3  C.  P.  422;  Lim- 
pus  V.  London,  &c.,  Co.,  1  Hurl.  &  Colt.  52(j ;  Patten  v.  Rea,  2  C.  B.  x.  s.  606  ;  40 
E.  L.  &  Eq.  329  ;  Bard  v.  Yohn,  26  Penn.  St.  482  ;  Crockett  v.  Calvert.  8  Ind. 
127  ;  Wright  v.  Wilcox,  19  Wend.  343. 

2  Poulton  V.  South  western  R.  R.  Co.,  L.  R.  2  Q.  B.  534.  See  Russell  v. 
Irby,  13  Ala.  131. 

3  Church  V.  .Mansfield,  20  Conn.  284. 

■*  Smith  Mast.  &  Serv.  161;  Butterfield  v.  Forrester,  11  East,  60;  Illinois  C. 
R.  R.  Co.  I'.  Baches,  55  III.  379. 

*vSee  Shearm.  &  Redf.  Negligence,  73;  Harris  v.  Nicholas,  5  Munf.  483; 
Moore  i'.  Sanborne,  2  Mich.  519 ;  Wright  v.  Wilcox,  19  Wend.  343. 

[  683  ] 


*  640  MASTER  AND   SERVANT. 

aoain,  a  man  may  be  liable  in  trespass  for  the  act  of  one  not 
strictly  his  servant.^     Thus,  if  the  comma^nd  be  express,  the 
master  is  liable  ;  so  if  trespass  be  the  necessary  consequence 
of  obeying  his  orders ;  ^  so  if  he  be  present  and    does  not 
prevent   the  injury ;  ^  but  not  where  there  is  no  exercise  of 
volition,  either  express  or  implied  on  his  part."*     Says  Parke, 
B. :  "  The  result  of  the  authorities  is,  that  if  a  servant  in  the 
course  of  his  master's  employ  drives  over  any  person,  and 
does  a  wilfid  injury,  the  servant,  and  not  the  master,  is  liable 
in  trespass  ;  if  the  servant  by  his  negligent  driving  causes  an 
injury,  the  master  is  liable  in  case  ;  if  the  master  himself  is 
driving,  he  is  either  liable  in  case  for  his  negligence,  or  in 
trespass,  because  the  act  was  wilful."  ^     The  American  cases 
are  also  numerous  where  the  master  has  been  excused  from 
the  consequences  of  the  wilful  and  wanton  trespass  of  his 
servant,  contrary  to  his  orders  or  plainly  without  the  scope 
of  an  authority  ;  though  the  disposition  seems  not  strong  to 
maintain  any  such  technical  distinction  between  different  kinds 
of  injuries.     Thus  if  the  engineer  of  a  train  purposely 
*  641    run  over  an  animal  on  the  *  track,  or  if  the  driver  of  a 
wagon  wantonly  injure  a  boy  who  asked  a  ride  with 
him,  the  master  is  held  not  liable,  though  the  servant  be  at 
the  time  occupied  about  his  employer's  business.*^ 

But  to  apply  the  foregoing  principle  in  all  its  strictness  is 
not  easy.  Thus  there  are  instances  where  railway  companies- 
have  been  held  liable  for  rude,  rough,  and  even  apparently 
wanton  and  wilful  acts  of  their  station-agents  and  conductors, 
in  ejecting  a  passenger,  wrongful  detention  and  arrest,  and 

1  Smith  Mast.  &,  Serv.  172-177,  and  cases  cited. 

2  Gregory  v.  Piper,  9  B.  &  C.  591  ;  Lyons  v.  Martin,  8  Ad.  &  El.  512.  See 
Eastern  Counties  R.  R.  Co.  v.  Broom,  6  Exch.  314  ;  Eraser  t;.  Freeman,  56  Barb. 

234. 

3  Chandler  v.  Broughton,  1  Cr.  &  M.  29 ;  Byram  v.  McGuire,  3  Head,  530. 

4  McManus  v.  Crickett,  1  East,  106,  per  Kenyon,  C.  J. ;  Sharrod  v.  London 
&  Nortli-western  R.  R.  Co.,  4  Exch.  580. 

6  Gordon  v.  Rolt,  4  Exch.  365. 

6  IlHnois  Central  R.  R.  Co.  v.  Downey,  18  111.  259  ;  Vanderbilt  v.  Richmond 
Turnpike  Co.,  2  N.  Y.  479  ;  Shearm.  &  Redf.  Negligence,  72  ;  Wright  v.  Wilcox, 
19  Wend.  343;  Moore  v.  Sanborne,  2  Mich.  519;  Harris  v.  Nicholas,  5  Munf. 
483;  Johnson  v.  Barber,  5  Gilm.  425;  Green  v.  Macnamara,  8  C.  B.  n.  s.  880. 
And  see  Evansville  R.  R.  Co.  v.  Baum,  26  Ind.  70. 
[  684] 


RIGHTS   AND  LIABILITIES   OF  THE   MASTER.         *  6il 

the  like.  And  this,  too,  although  in  doing  it  the  emjyloyS 
departed  from  the  instructions  of  the  company. ^  After  all, 
the  principle  of  scope  of  the  servant's  emplo3'^ment  seems  best 
to  explain  the  extent  of  the  master's  liability  ;  and  the  Amer- 
ican cases  appear  to  have  brought  it  to  bear,  whatever  the 
nature  of  the  injury,  and  however  difficult  it  might  some- 
times be  found  to  apply  the  principle  understandingly  to  a 
particular  state  of  facts. ^ 

The  rule  as  to  real  and  personal  estate  is,  in  this  respect, 
substantially  the  same  as  that  which  applies  to  the  person. 
Thus,  where  one  agreed  to  convey  land  to  another,  and  the 
second  party  agreed  to  build  a  house  thereon,  and  pay  for  the 
land  ;  and  while  the  agreement  was  in  force,  the  workmen  of 
the  second  party  undermined  the  wall  of  an  adjoining  honse, 
it  was  held  that  the  first  party  was  not  answerable  for  the 
injury,  though  the  title  to  the  land  still  remained  in  him.^ 
The  general  principle  to  be  extracted  from  the  cases,  in  re- 
gard to  the  use  of  real  property,  is,  that  the  owner  of  real 
estate,  either  absolutely  or  for  the  time  being ;  he  who  has 
the  management  and  control,  and  takes  the  benefit  and  profit 
of  the  estate  ;  he  at  whose  expense  and  on  whose  account 
the  business  is  conducted,  —  shall  be  responsible  to  third  per- 
sons for  the  carelessness,  negligence,  or  want  of  skill  of  those 
who  are  carrying  on  and  conducting  the  business  by 
which  they  are  damnified.*  *  But  for  a  nuisance  on  *  642 
land  by  which  injury  is  occasioned,  the  owner  or  occu- 
pant may  be  liable  to  others,  through  his  own  contributory 
neo-linrence.     Thus  where  an  excavation  in  front  of  a  building 

1  Weed  V.  Panama  R.  R.  Co.,  17  N.  Y.  362 ;  Milwaukee  &  Miss.  R.  R.  Co.  v. 
Finney,  10  Wis.  388 ;  Higgins  v.  Watervliet  Turnpilce  Co.,  46  N.  Y.  23 ;  Pas- 
senger R.  R.  Co.  V.  Young,  21  Ohio  St.  518 ;  Bayley  v.  Manchester,  &c.,  R.  R. 
Co.,  L.  R.  8  C.  P.  148;  Walker  i'.  South-eastern  R.  R.  Co.,  L.  R.  5  C.  P.  640; 
Drew  I'.  Sixth  Avenue  R.  R.  Co..  26  N.  Y.  49.  A  peculiar  instance  of  wanton 
misbehavior  by  the  driver  of  a  horse-car,  for  whicii  the  company  was  obliged, 
notwithstanding,  to  respond  substantially,  is  found  in  Pittsburgh,  &c..  Passenger 
R.  R.  Co.  i:  Donahue,  70  Penn.  St.  119. 

2  See  further,  Shearm.  &  Redf.  Negligence,  72. 

3  Earle  v.  Hall,  2  Met.  358.     And  see  Coomes  v.  Houghton,  102  Mass.  111. 

4  Per  Shaw,  C.  J.,  Earle  v.  Hall,  supra.  See  Benedict  v.  Martin,  36  Barb.  288 ; 
Luttrell  ('.  Hazen,  3  Sneed,  20;  Elder  v.  Bemis,  2  Met.  599  ;  Simons  v.  Monier, 
29  Barb.  419  ;  Smith  v.  Webster,  23  Mich.  298. 

[685] 


*  642  MASTER  AND  SERVANT. 

was  left  open  and  unguarded,  and  although  this  was  done  by 
a  contractor  for  the  work,  yet  it  continued  for  some  time  after 
the  owner  of  the  premises  had  knowledge  of  its  condition, 
and  had  been  notified  by  the  authorities  of  the  danger,  the 
owner  was  held  liable  for  an  injury  occasioned  by  a  person's 
falling  into  the  hole.^ 

An  exception  to  the  master's  responsibility  for  the  tortious 
acts  of  his  servant  is  found  in  the  rule,  now  well  settled  in 
England  and  America,  that  a  master  is  not  in  general  respon- 
sible to  his  own  servant  for  any  injury  which  the  latter  may 
sustain  through  the  negligence  or  wrongful  act  of  a  fellow- 
servant,  unless  the  master  has  been  negligent  in  his  selection 
or  retention  of  the  servant  at  fault.^ 

The  application  of  this  rule  is  usually  to  railway  compa- 
nies and  other  common  carriers,  not  often  to  domestic  ser- 
vants ;  but  all  who  occupy  the  relation  of  master  and  servant 
come  within  its  scope.  A  late  case  in  the  English  House  of 
Lords,  decided  on  appeal,  to  the  effect  that  the  employers  of 
a  manufacturing  establishment  are  not  responsible  for  injuries 
to  their  emi^loyes  under  these  circumstances,  places  the  much- 
contested  doctrine  on  settled  foundations,  so  far  as  concerns 
that  country .3  The  Lord  Chancellor,  in  delivering  his  opinion 
in  this  case,  referred  with  approval  to  the  usual  argument 
urged  in  favor  of  the  rule :  namely,  that  the  workman  who 
contracts  to  do  work  of  any  particular  sort,  knows,  or  ought 
to  know,  to  what  risks  he  is  exposing  himself,  and  should 
make  his  contract  accordingly .*  The  same  rule  of  non-lia- 
bility for  the  torts  of  fellow-servants  has  been  frequently 
applied  in  this  country.  As  where  one  servant,  without 
authority  from  his  employer,  directs  another  to  use  a  machine 

1  Cliicago  V.  Eobbins,  2  Black,  418.  And  see  Hilliard  v.  Richardson,  3  Gray, 
349;  Harlow  v.  Humiston,  6  Cow.  189.  See  Clark  v.  Fry,  8  Ohio  St.  358; 
Brackett  v.  Lubke,  4  Allen,  138. 

2  Smith  Mast.  &  Serv.  187  ;  Priestley  v.  Fowler,  3  M.  &  W.  1 ;  Hutchinson 
V.  York,  &c.,  R.  R.  Co.,  5  Exch.  343 ;  Farwell  v.  Boston  &  Worcester  R.  R.  Co., 
4  Met.  49 ;  Bartonshill  Coal  Co.  v.  Reid,  3  Maeq.  H.  L.  266 ;  Abraham  v.  Rey- 
nolds, 5  Hurl.  &  Nor.  143;  Shearm.  &  Redf.  Negligence,  101,  and  cases  cited; 
Sherman  v.  Rochester  R.  K.  Co.,  17  N.  Y.  153. 

8  AVilson  V.  Merry,  L.  R.  1  Sc.  App.  32G.  *  lb. 

[  686] 


RIGHTS   AND   LIABILITIES   OF  THE   MASTER.         *  642 

in  a  dangerous  and  improper  manner.^  And,  of  course, 
wherever  the  carelessness  of  the  servant  who  was  injured 
contributed  to  the  injury .2  The  converse  of  our  rule  holds 
good  ;  namel3%  that  the  master  is  responsible  for  the  injury 
sustained  by  a  servant  through  the  negligence  or  misconduct 
of  a  fellow-servant,  as  for  an  injury  committed  by  himself, 
where  he  was  negligent  in  selecting  the  fellow-servant,  or 
in  continuing  him  in  employment  after  that  fellow-servant 
proved  incompetent.^  It  might  be  a  question  whether  the 
master  is  not  in  such  cases  held  responsible,  as  substantially 
the  party  whose  negligence  caused  the  injury  ;  if  so,  this 
principle  could  be  pushed  still  further.'^ 

*  So  it  is  held  on  like  grounds,  irrespective  of  the  *  643 
question  of  fellow-servants,  that  a  master  is  not  liable 
to  his  servant  for  any  defects  in  the  materials  furnished  to  the 
latter  for  use  in  the  master's  service,  unless  he  was  negligent 
in  providing  such  materials  or  in  pointing  out  their  defects.^ 
Nor  for  injuries  caused  his  servant  by  latent  defects  in  the 
structures  of  employment  where  he  had  appointed  suitable 
inspectors  who  failed  to  discover  and  report  them,  and  he  re- 
ceived no  other  information  that  the  defects  in  fact  existed.^ 
In  short,  ordinary  care  and  diligence  on  his  part  will  protect 
the  master  from  liability  to  his  own  servants ;  and  ordinary 
care  is  usually  presumed  to  exist,  in  absence  of  proof  to  the 
contrary^  But  for  his  own  negligence  a  master  is  liable  to 
his  own  servant  as  to  any  one  else  ;  that  is  to  say,  provided 
the  servant  exercised  ordinary  care,  and  not  otherwise.  And 
it  is  incumbent  upon  him  to  use  ordinary  care  in  selection  of 

1  Eclch  V.  Allen,  98  Mass.  572  ;  Durgin  v.  Munson,  9  Allen,  396. 

2  Hoben  v.  Burlington,  &c.,  R.  R.  Co.,  20  Iowa,  562. 

3  Weger  v.  Penn.  R.  R.  Co.,  55  Penn.  St.  460  ;  McMahon  v  Davidson,  12 
Minn.  357.     See  Chicago,  &c;.,  R.  R.  Co.  v.  Jackson,  55  111.  492. 

i  See  Davis  v.  Detroit,  &c.,  R.  R.  Co.,  20  Mich.  105. 

5  Sheavm.  &  Redf.  Negligence,  103,  and  cases  cited  ;  Ilayden  v.  Smithville,  &c., 
Co.,  29  Conn.  548. 

6  Warner  v.  Erie  R.  R.  Co.,  39  N.  Y.  468.  But  see  Chicago,  &c.,  R.  R.  Co.  i-. 
Jackson,  55  111.  492  ;  Paulraier  v.  Erie  R.  R.  Co.,  34  N.  J.  L.  151. 

T  Shearm.  &  Redf.  104  ;  Roberts  v.  Smith,  2  Hurl.  &  Nor.  213  ;  Brydon  v. 
Stewart,  2  Macq.  II.  L.  30  ;  Cayzer  v.  Taylor,  10  Gray,  274  ;  Ashworth  v.  Stan- 
wix,  3  El.  &  El.  701 ;  Johnson  v.  Bruner,  61  Penn.  St.  58. 

[  687] 


*  643  MASTER  AND   SERVANT. 

servants,^  and  in  the  procurement  of  materials,  and  in  keep- 
ing the  premises  of  usual  employment  in  repair,^  and  in 
remedying  defects  which  are  brought  to  his  notice.^  But  a 
master  does  not  insure  his  servant  against  accidents.  "^ 

The  principle  of  a  master's  liability  for  his  own  negligence 
as  respects  his  servant  is  well  illustrated  by  the  curious  case 
of  3Ia7'sJiaU  v.  Stewart.  Here,  a  miner  who  was  employed  in 
the  defendant's  mine,  went  down  as  usual  to  his  day's  work, 
but  he  and  the  other  miners,  after  working  a  short  time,  held 
a  meeting  amongst  themselves  to  discuss  their  supposed 
wrongs  ;  and  they  resolved  to  go  up  from  the  pit  at  noon,  the 
usual  hour  of  their  return  being  five  o'clock  in  the  afternoon, 
and  represent  their  grievances  together  to  the  manager. 
While  so  coming  up,  this  miner  was  killed  by  a  stone  which 
fell  from  the  top  of  the  shaft.  In  the  lower  court,  it  was 
ruled  that  his  legal  representatives  had  no  cause  of  action, 
inasmuch  as  he  was  leaving  his  work  without  proper  cause 
and  for  a  purpose  of  his  own,  and  thus  received  the  injury. 
It  appeared  in  evidence  that  the  planking  at  the  mouth  of 
the  pit  was  in  an  unsafe  state,  and  therefore  the  stone 

*  644    fell.    When  the  case  came  *  before  the  House  of  Lords, 

the  ruling  of  the  lower  court  was  reversed,  on  the 
principle  that,  whether  the  miner  was  leaving  his  work  prop- 
erly or  not,  still  the  master  was  liable,  being  bound  to  take 
him  up  just  as  safely  as  he  let  him  down.  Lord  Chancellor 
Cranworth  urged  that  while  the  master's  liability  for  acci- 
dents occasioned  by  his  neglect  towards  those  whom  he  em- 
ploys extends  only  to  the  time  of  their  actual  emploj'ment, 
great  latitude  must  be  given  to  the  phrase  '*  engaged  in  liis 
emplo3'ment."     Whatever  the  servant  does  in  the  course  of 

1  Oilman  v.  Eastern  R.  R.  Co.,  10  Allen,  233  ;  Faulkner  v.  Erie  R.  R.  Co.,  49 
Barb.  324 ;  Moss  v.  Pacific  R.  R.  Co.,  49  Mis.  167.  The  English  statement  of 
the  rule  is  that  "negligence  cannot  exist  if  the  master  does  his  best  to  employ 
competent  persons  ;  he  cannot  warrant  the  competency  of  his  servants."  Tar- 
rant V.  Webb,  25  Law  J.  k.  s.  C.  P.  263. 

2  Ryan  v.  Fowler,  24  N.  Y.  410 ;  Williams  v.  Clough,  3  Hurl.  &  Nor.  258 ; 
Buzzell  V.  Laconia,  &c.,  Co.,  48  Me.  113. 

3  Perry  v.  Ricketts,  55  111.  234.  And  this  liability  for  his  own  negligence 
would  appear  to  apply  in  some  cases  where  a  fellow-servant  contributed  to  the 
injury.     Paulmier  v.  Erie  R.  R.  Co.,  34  N.  J.  L.  151. 

*  Flynn  v.  Beebe,  98  Mass.  575,  per  Hoar,  J. 

[  688  ] 


RIGHTS  AND   LIABILITIES   OF   THE   MASTER.        *  644 

his  employment  according  to  the  fair  interpretation  of  the 
words,  eundo,  morando,  et  reduendo^  for  all  that  the  master  is 
responsible.^ 

The  rule  that  a  master  is  not  responsible  to  one  servant  for 
the  negligence  of  a  fellow-servant  applies  to  the  case  of  a 
person  who  is  injured  while  voluntarily  assisting  the  servant. ^ 
A  guest,  a  friend,  a  relative,  any  one  engaged  in  the  same 
common  work,  comes  within  the  principle.  So,  too,  where 
an  owner  gave  general  directions  to  his  servant  to  throw  the 
snow  and  ice  from  his  roof,  and  a  friend  of  the  servant  vol- 
untarily assisted  him  in  the  work,  the  owner  was  held  liable 
to  third  parties  for  an  injury  caused  by  ice  and  snow  thrown 
by  the  one  as  well  as  the  other.^  But  where  the  servant  of  a 
certain  firm,  who  was  employed  by  the  defendants  to  carry 
cotton  from  a  warehouse,  was  receiving  the  cotton  upon  his 
dray,  and,  in  consequence  of  the  negligence  of  the  defendant's 
porters  in  lowering  the  bales  from  above,  a  bale  fell  upon  him, 
it  was  held  that  he  was  not  deprived  of  the  right  of  action.* 
For  though  in  some  respects  they  were  both  performing  work 
for  the  same  master ;  yet  they  were  not  under  the  same  con- 
trol, nor  forming  part  of  the  same  establishment,  nor  em- 
ployed in  one  common  object.  And  the  result  in  such  a  case 
would  be  that,  for  injuries  sustained,  the  party  injured  would 
hold  the  master  of  the  other  servant  responsible  upon  the 
same  ground  that  he  would  any  stranger.^ 

To  determine  who  do  and  who  do  not  occupy  the 
legal  relation  *  of  master  and  servant,  so  as  to  lay  the  *  645 
foundation  of  an  action  for  negligence,  is  then  a  matter 
of  considerable  importance,  and,  moreover,  of  considerable 
difficulty.  Who  is  the  actual  master  ?  and  who  is  the  actual 
servant?  Many  such  controversies  arise  where  railroads  are 
in  the  hands  of  contractors  and  in  process  of  construction,  or 

'  Marshall  v.  Stewart,  2  Macq.  Ho.  Lords,  30;  33  E.  L.  &  Eq.  1.  But  see 
Paterson  v.  Wallace,  28  E.  L.  &  Eq.  48. 

-'  Degg  i;.  Midland  R.  R.  Co.,  40  E.  L.  &  Eq.  376 ;  Potter  v.  Faulkner,  1  Best 
&  Smith,  800.  3  Althorf  v.  Wolfe,  22  N.  Y.  355. 

<  Abraiiani  v.  Reynolds,  5  Hurl.  &  Nor.  14:5. 

s  Oliio,  &c.,  R.  R.  Co.  V.  Haiiimersley,  28  Ind.  371  ;  Stewart  v.  Harvard  Col- 
lege, 12  Allen,  58;  Washburn  v.  Nashville,  &c.,  R.  R.  Co  ,  3  Head,  (338. 

44  [  689  J 


♦645  MASTER  AND    SERVANT. 

in  control  of  trustees  or  receivers.^  So  a  police  officer,  or  a 
fireman,  is  not  necessarily  a  servant  of  the  city,  so  as  to  take 
away  his  right  of  action  for  an  injury  committed  by  a  fellow- 
servant  ;  and  the  same  may  be  said  of  other  public  officers.^ 
Nor  would  an  owner  of  property  be  ordinarily  the  master  in 
this  sense  of  an  independent  contractor  doing  work  without  his 
own  control ;  while,  at  the  same  time,  there  are  circumstances 
from  which  an  agency  as  to  acts  of  negligence  may  be  in- 
ferred.^ But  an  express  agent,  lawfully  travelling,  may  be  a 
servant  of  the  company,  where  employed  by  the  superintend- 
ent of  the  road  to  act  as  brakeman  during  one  trip.*  It  is 
essential  that  the  relation  de  facto  should  have  existed  at  the 
time  of  the  injury  complained  of;  for  while,  on  the  one 
hand,  a  mere  volunteer,  or  one  in  temporary  employ  who  is 
regularly  the  servant  of  another,  may  then  be  a  servant,  in 
legal  contemplation,  a  general  servant  who  has  completed  his 
particular  employment  may  be  constructively  out  of  the  ser- 
vice when  the  accident  occurs.^ 

A  "  fellow-servant,"  within  the  meaning  of  the  rule  of  a 
master's  exemption  from  liability,  is  usually  understood  to  be 
any  one  serving  the  same  masker,  and  under  his  control, 
whether  equal,  inferior,  or  superior  to  the  injured  person  in 
his  grade  or  standing.^  But  a  master  who  injures  his  own 
servant  cannot  claim  immunity  as  a  "  fellow-servant,"  though 
joining  in  the  work.^  Of  course,  the  mere  fact  that  two  per- 
sons are  engaged  in  ministering  to  the  wants  of  one  individ- 

1  1  Redf.  Raihv.  3d  ed.  506-509;  Ballon  v.  Farnum,  9  Allen,  47;  Meara  v. 
Holbrook,  20  Ohio  St.  137. 

2  Kimball  v.  Boston,  1  Allen,  417  ;  Palmer  v.  Portsmouth,  43  N.  H.  265. 

3  Conlin  v.  Charlestown,  15  Rich.  201 ;  Coomes  i'.  Houghton,  102  Mass.  211 ; 
Railroad  v.  Banning,  15  Wall.  649  ;  Water  Co.  v.  Ware,  16  Wall.  566. 

4  Chamberlain  v.  Milwaukee  R.  R.  Co.,  11  Wis.  238.  And  see  Stone  v.  Cod- 
man,  15  Pick.  297  ;  Flint  v.  Gloucester  Gas-light  Co.,  9  Allen,  552. 

5  See  Brown  v.  Purviance,  2  Har.  &  Gill,  316;  Wood  v.  Cobb,  13  Allen,  58. 
«  Faulkner  V.  Erie  R.  R.  Co.,  49  Barb.  324;  Shearm.  &  Redf.  Negligence 

115;  Feltham  v.  England,  L.  R.  2  Q.  B.  33;  Wigmore  v.  Jay,  5  Exch.  354; 
Shanck  v.  Northern,  &c.,  R.  R.  Co.,  25  Md.  462;  Murray  v.  Currie,  L.  R.  6  C.  P. 
24.  But  in  some  States  this  rule  appears  to  be  relaxed  somewhat  for  the  injured 
servant's  benefit.  Louisville  &  Nashville  R.  R.  Co.  v.  CoUins,  2  Duv.  114  ;  Lit- 
tle Miami  R.  R.  Co.  v.  Stevens,  20  Ohio,  415. 
T  Ashworth  v.  Stanwix,  3  El.  &  El.  701, 
[690] 


RIGHTS   AND   LIABILITIES   OF   THE   MASTER.       *  645 

ual,  does  not  necessarily  make  them  fellow-servants  ;  thus, 
one  may  have  clerks  in  his  office  business,  and  domestics  at 
his  home  ;  they  are  not  engaged  in  a  common  employment. 

Yet  should  this  distinction,  though  often  exceedingly  diffi- 
cult of  application  in  the  perplexed  and  complicated 
relations  of  *  modern  business,  be  reasonably  enforced.  *  646 
The  latest  English  doctrine  is  certainly  in  favor  of  the 
master's  exemption  in  cases  of  doubt :  for,  the  Lord  Chan- 
cellor observes  in  Wilson  v.  3Ierri/,  "I  do  not  think  the  lia- 
bility, or  non-liabilit}',  of  the  master  to  his  workmen  can 
depend  upon  the  question  whether  the  author  of  the  accident 
is  not,  or  is,  in  any  technical  sense,  the  fellow- workman,  or 
eollahorateur  of  the  sufferer.  In  the  majority  of  cases  in 
which  accidents  have  occurred,  the  negligence  has,  no  doubt, 
been  the  negligence  of  a  fellow- workman ;  but  the  case  of 
the  fellow-workman  appears  to  me  to  be  an  example  of  the 
rule,  and  not  the  rule  itself.  The  rule,  as  I  think,  must 
stand  upon  higher  and  Jaroader  grounds."  ^  The  expressions 
"fellow-workmen,"  '■'•eollahorateur^''''  "foreman,"  "manager," 
and  the  like,  when  used  in  a  strict  or  limited  sense,  ,are,  it 
may  be  added,  calculated  to  mislead ;  especially  when  used 
in  connection  with  railroad,  mining,  and  manufacturing  cor- 
porations ;  hence,  some  apparent  confusion  arises.  We  must 
always  look  at  the  functions  the  party  discharges,  and  his 
position  in  the  organism  of  the  force  employed,  and  of  which 
he  forms  a  constituent  part.^ 

As  a  general  rule,  the  master  is  not  criminally  liable  for  the 
acts  of  his  servants,  unless  he  expressly  command  or  per- 
sonally co-operate  in  them.  Each  offender  against  public 
justice  must  answer  for  himself.^  Where  one,  however,  pro- 
cures innocent  agents  to  do  acts  amounting  to  a  felonj^  the 
employer,  and  not  the  innocent  agent,  is  held  accountable  ; 
for  this  is  his  own  act.^     As  to  penalties,  the  rule  in  this 

1  Wilson  V.  Merry,  L.  R.  1  Sc.  App.  326,  «»/>;«.  Lord  Cranworth  and  tlic 
others  concurred  in  tiiis  opinion,  and  their  remarks  are  to  tlie  same  purport. 

2  See  remarks  of  Lord  Colonsay  in  Wilson  v.  Merry,  supra. 

3  Sniitli  Mast.  &  Serv.  143;  Story  Agency,  §  452;  Rex  v.  Huggins,  2  Ld. 
Raym.  1574 ;  Sloan  v.  State,  8  Ind.  312. 

<  Reg.  V.  Bleasdale,  2  Car.  &  K.  166. 

[691] 


*  647  MASTER  AND   SERVANT. 

country   is    sometimes   understood   to   be   the    same.^     Yet, 
penal  actions  in  general  have  more  the  character  of 

*  647    civil  suits  than  of  criminal  proceedings  ;  *  and,  under 

the  revenue  laws,  penalties  are  frequently  imposed 
upon  the  master.^  So  again  are  masters  indicted  for  public 
nuisances  committed  by  their  servants,^  according  to  the 
English  rule.  Some  of  the  proceedings  authorized  by  stat- 
ute against  corporations  in  this  country  for  damages  caused 
by  the  negligence  of  their  servants  will  be  found  to  contain  a 
like  principle. 

The  foregoing  brief  statement  of  doctrines  concerning  the 
law  of  master  and  servant  may  suffice  for  the  present  treatise 
in  its  limited  space  and  scope.  To  enter  upon  the  law  further, 
or  to  attempt  an  analysis  of  the  numerous  and  conflicting 
cases  which  constantly  arise  at  the  present  day  under  what 
might  be  called  the  analogies  of  master  and  servant,  would  be 
at  present  impossible.  We  trust  in  iime  to  see  the  topic  of 
master  and  servant  confined  to  its  legitimate  and  proper 
limits^  as  one  of  the  domestic  relations,  and  some  new  and 
more  comprehensive  title  applied  to  such  decisions  as  clearly 
affect  mankind  in  the  external  concerns  of  life. 

1  Deerfield  v.  Delano,  1  Pick.  465 ;  Goodhue  v.  Dix,  2  Gray,  181. 
-    See  Smith  Mast.  &  Serv.  14-5-147 ;  Attorney-General  v.  Siddon,  1  Cr.  &  J. 
-  220;  Atcheson  v.  Everitt,  Cowp.  391. 

3  1  Bl.  Com.  431,  432  ;  Turberville  v.  Stampe,  1  Ld.  Eaym.  264. 


[692] 


INDEX. 


INDEX. 


A. 

ABANDONMENT,  ^agb 

gives  wife  rights  a.s  feme  sole 244,  295 

ACCOUNTS, 

of  guardians  in  chancery  practice 494 

distinction  between  final  and  intermediate  accounts     ....     495 

practice  in  the  United  States ■^^o 

items  allowed  the  guardian '*"^ 

compensation  of  guardians 500  &  n. 

ACTIONS,  —  Husband  and  Wife. 

by  husband  for  enticement ^' 

by  wife  a.s  feme  sole "•* 

by  husband  and  wife  against  each  other 63 

on  the  wife's  debts  dum  sola '2 

with  reference  to  wife's  torts 104>  107-110 

with  reference  to  wife's  real  estate 143,  144,  147,  165 

wife's  remedy  for  waste 1*^ 

after  wife's  death  for  choses  not  reduced 163 

as  to  separate  estate l''^ 

rights  under  married  women's  acts 215,  238 

where  wife  is  abandoned  by  husband 295 

Parent  and  Child. 

parent  for  child's  services ^"^^ 

per  2?<od  for  child's  injuries,  seduction,  &c 351,355 

as  to  illegitimate  children 384,  386 

Guardian  and  Ward. 

by  guardian  on  behalf  of  ward 462  &  n. 

guardians  sued  on  their  bonds ^^1 

ward's  suit  against  guardian ^^^ 

ward's  action  of  account ,     .     .     506 

Lifancy. 
suits  must  be  brought  by  guardian  or  prochein  ami     ....     592 

infants  cannot  sue  by  attorney  or  in  person 593 

how  the  prochein  ami  is  appointed 594 

his  liabilities 595 


696  INDEX. 

ACTIONS  —  Continued. 

infants  must  defend  by  guardian  only 596 

guardians  ad  litem « 596 

matters  of  practice 596 

equity  proceedings  are  similar 598 

(.See  also  Divorce;  Torts;  Master;  Servant.) 

ADJkllNISTRATION, 

of  husband  upon  wife's  estate 158 

takes  jure  juariti 160 

statutes  of  distribution 160 

wife's  right  to  administer  on  husband's  estate 168 

right  to  administer  affected  by  divorce 302 

durante  minore  mtale 442,  445 

{See  Executrix.) 

ADOPTION, 

of  children 314 

ADVANCEMENT, 

from  parent  to  child 376 

AGENCY.     {See  Contracts  ;  Master  and  Servakt.) 

ALIENAGE, 

real  estate  affected 145 

ANTENUPTIAL   SETTLEMENTS, 

settlements  in  general 262 

distinctions  under  statute  of  frauds 262 

marriage  a  sufficient  consideration 263 

how  far  it  extends  its  support 264 

settlement  good  in  pursuance  of  written  agreement    ....  265 

form  of  marriage  settlement 266 

marriage  articles 267 

enforceable  against  third  persons 267 

secret  settlements  set  aside 268 

the  question  one  of  fraud 270 

binding  force  of  marriage  settlements 271 

marriage  articles  suitable  in  extreme  cases 271 

settlements  reformed  in  accordance 272 

errors  corrected  in  equity 273 

what  are  portions 273 

covenants  to  settle  after-acquired  property 273 

rights  under  settlement,  when  forfeited 274 

provision  in  event  of  future  bankruptcy 274 

marriage  settlements  in  America 275 

effect  of  marriage  upon  a  debt  already  due  from  one  spouse  to 

the  other 275 

general  observations 274 

APPOINTMENT, 

guardians  generally  appointed 406 

but  not  natural  and  socage  guardians 406 

testamentary  guardians  appointed  by  parent 407 


INDEX.  697 


APPOINTMENT  —  Continued. 

what  language  siifRcc-s  as 407 

extent  of  power  of  appointment  and  authority 408 

whether  infant  can  appoint 409 

rule  as  to  illegitimate  children 388 

c/ia/icec?/ o/tr//)/-o6a/e,7«a?vZj««s  judicially  appointed    ....  410 

what  tribunal  exercises  jurisdiction  and  when 410 

what  person  is  selected  as  guardian 414 

leading  considerations 414,  416 

right  of  married  women  and  non-residents 418 

method  of  appointment 419 

effect  of  chancery  or  probate  appointment 420 

civil-law  principles 42- 

liability  after  appointment,  before  qualification 443 

APPRENTICE, 

legislation  in  England  and  America 368,  560,  604 

mutual  rights  and  duties  of  master  and  apprentice      .     .     •     605,  n. 

ATTAINDER, 

real  estate  affected 145 

as  to  guardianship 434 


B. 

BASTARDS  (see  Illegitimate  Children) 379-388 

BOND,  —  of  Guardians, 

English  practice  ;  receiver's  duties 420,  488 

American  rule  as  to  probate  and  other  guardians  ....  420,  489 

liability  of  sureties 445,  491 

general  principles  applicable  to  bonds       ..:...       434,  493 

suits  on  probate  bonds ^01 

enforcement  of  sureties'  liability ^03 

indemnity  of  sureties ^03 


c. 

CHATTELS   REAL, 

of  the  wife,  general  rule 137 

title  of  husband  and  wife 137 

how  the  husband  may  appropriate 138 

incidents  of  such  property 139 

effect  of  husband's  lease  and  mortgage 140 

other  acts  which  defeat  survivorship 142 

CHILDREN, 

whether  wife  need  support  from  separate  estate      .     .     .       197,  215 

legitimate  children  in  general 303-314 

{See  Legitimacy.) 

agency  of  child  for  necessaries 327 


698  INDEX. 

CHILDREN  —  Continued. 

whether  there  is  implied  authority 328 

agency  may  be  inferred 329 

agency  in  general  transactions 330,  3G6 

liability  for  injuries 362 

duties  of  cliildren  to  parents 364 

extent  of  obligation  to  maintain 365 

right  of  child  to  his  earnings 367 

(See  Earnings;  Emancipation.) 

full-grown  children  remaining  at  home 358,  372 

contracts  between  parent  and  child 374 

advancements  ;  sale  of  expectant  estates  by  heir 376 

legacies  of  children  ;  rights  by  descent  and  distribution  .     .     .  378 

step-children  ;  quasi  relation  of  parent  and  child 378 

illegitimate  children  (see  Illegitimatk  Children)  ....  379 
(5'ee  aZso  Parent ;  Infants;  Custody.) 
CHOSE S   IN  ACTION, 

of  the  wife  vest  conditionally  in  husband 114 

husband  must  reduce  into  possession 114 

what  are  choses  in  action 115 

reduction  into  possession,  how  effected 116-128 

(See  Reduction.) 

COMMUNITY 14,  257 

CONFLICT   OF   LAWS, 

relating  to  marriage 47 

as  to  property  acquired  by  marriage 67,  208 

as  to  legitimacy 313 

as  to  ward's  person 443 

as  to  ward's  property 444 

as  to  age  of  majoritv 520 

CONSTITUTION, 

question  under,  as  to  married  women's  acts 216 

as  to  acts  interfering  with  parental  rights  and  duties  ....  350 

as  to  matters  of  guardianship 446 

CONTRACTS, 

husband  and  wife  cannot  contract  with  one  another     ....  63 

wife's  disability  at  common  law 74 

but  wife  may  bind  husband  as  his  agent 76 

doctrine  of  wife's  necessaries 76 

what  are  necessaries  for  the  wife 77,  87 

how  far  wife  may  bind  for  necessaries 80 

rule  where  husband  and  wife  live  together 81 

agency  inferred  when  husband  neglects  to  supply 85 

marriage  de  facto  sufficient 86 

husband's  liability  where  they  live  apart 89 

misconduct  of  the  wife  affects  her  agency 91 

how  far  wife  may  bind  herself,  if  delinquent 93 

latest  English  rule  as  to  wife's  necessaries 96 


INDEX.  699 

CONTRACTS  —  Continued. 

effect  of  married  women's  acts 215 

■wife's  agency  for  her  husband  in  general  contracts      ....       98 

by  wife  as  to  real  estate  not  binding 152,  153 

-where  wife  is  abandoned  by  husband 295 

{See  also  Separate  Estate  ;  Children  ;  Infants  ;  Guardian  and  Ward  ; 

Servant.) 
CONVEYANCE, 

by  wife ^ 152,155,234 

between  husband  and  wife 287 

to  husband  and  wife 288 

(See  Real  Estate.) 
CONVERSION, 

of  real  estate  into  personalty  as  between  husband  and  wife  .     .     150 

of  ward's  property 466,  481 

COUNCILS   OF   CONCILIATION    (see  Workmen) 603 

COVERTURE, 

general  principles  at  common  law 51 

wife  under  cover,  or  protection  of  husband 52 

(See  Husband;  Wife.) 

CRIMES, 

of  husband  and  wife  considered 101 

of  parent 333,  348 

•      of  inf  inr, 348,  523 

infant  as  criminal  prosecutor 524 

of  servant 630,  646 

CURTESY, 

its  nature  and  incidents 163 

not  latterly  favored 1""^ 

in  separate  estate 196 

effect  of  married  women's  acts 215 

how  affected  by  wife's  will  under  recent  acts 257 

CUSTODY, 

of  children,  common-law  rule 61,333 

mother's  rights  disregarded 833 

chancery  jurisdiction 334 

on  what  grounds  the  court  interferes 336 

common-law  courts  interfere  on  habeas  corpus 337 

Justice  Talfourd's  act 338 

doctrine  of  custody  in  the  United  States 338 

child's  welfare  the  primary  object 339 

American  statutes  on  the  subject 340 

child's  wishes  sometimes  regarded 342 

agreements  to  transfer  custody 342 

guardian's  right  of  custody '*4° 


700  INDEX. 


D. 


DEATH, 

effect  of  wife's  death  on  suit  for  torts 103,  108,  110 

of  wii'e,  as  affecting  her  equity  to  settlement 133 

gives  husband  right  of  administration 158 

incidents  of  this  right 159 

statutes  of  distribution  in  husband's  Hivor 160 

husband's  death  before  complete  administration 161 

action  for  injury  to  wife's  real  estate 165 

husband's  claims  upon  wife's  real  estate 165 

husband  bound  to  bury  wife 167 

his  liability  upon  outstanding  contracts 167 

of  husband,  Avife's  right  to  administer 168 

her  distributive  share 168 

waiver  of  provisions  under  will 170 

widow's  allowance I'l 

paraphernalia 171 

reduction  of  wife's  c/ioses  affected  by  husband's  death  .     .     .     .  127 

death  as  affecting  real-estate  rights 176,  178 

{See  Rkal  Estate.) 

obligation  of  widow  to  bury  husband 179 

purchases  after  husband's  death 179 

affects  wife's  separate  estate 194,  195,  216 

death  of  guardian  or  ward,  its  effect 424,  426 

{See  Curtesy;  Dower;  Homestead.) 

DEBTS, 

of  wife  dam  sola  must  be  paid  by  husband 69 

liability  lasts  during  coverture  only 69 

the  wife  becomes  liable  on  survivorship 71 

Iniiitation  of  husband's  liability 72 

of  wife  during  coverture 74 

wife's  necessaries 80-98 

husband's  liability  after  wife's  death 159,  167 

liability  of  wife's  separate  estate 196,205 

of  wife  affected  by  legislation 215 

debt  due  from  one  spouse  to  the  other  before  marriage    .     .     .  275 
{See  Married  Women's  Acts.) 

DIVORCE, 

how  far  an  impediment  to  marriage 34 

effect  of  divorce  upon  torts 109 

in  England  until  lately  only  through  parliament 292 

general  principles  of  divorce 295 

history  of  divorce  legislation 295 

causes  of  divorce  and  remedies 298 

restitution  of  conjugal  rights 298 

effect  of  divorce  a  finc(<Zo  upon  property 112,299 

effect  of  divorce  a  mensa  upon  property 301 


INDEX.  701 

DIVORCE  —  Continued. 

capacity  of  wife  in  such  cases 302 

right  of  administration <^02 

mutual  rights  pending  divorce  proceedings ^'02 

ste<?<5  of  after-born  children • 311 

maintenance  of  children 322,  32b 

custody  of  children 340 

domestic'  relations, 

defined  and  classified 3,  5 

q 
its  leadmg  topics "^ 

classification  by  other  writers 3 

antiquity  of  the  law ° 

its  supremacy 

universal  in  its  scope -^ 

DOMICILE, 

assigned  by  law  to  every  one ^ 

matrimonial ^ 

effect  of  change  on  postnuptial  settlement 287 

wife's  domicile  for  purposes  of  divorce 299 

of  children 312,412 

guardian's  right  to  change  it 444,  452 

(See  Conflict  of  Laws.) 

DONATIO   CAUSA  MORTIS, 

of  the  wife 2G0 

DOWER, 

its  nature  and  incidents 182-185 

seisin  of  husband  as  an  essential 185 

how  barred  ;  how  assigned 180 

present  condition  of  law  in  England  and  America 185 

guardian  may  assign  ward's  dower 404,  472 

case  of  infancy '^"^ 


E. 

EARNINGS, 

of  wife  go  to  husband H"! 

of  wife  from  house-keeping  allowance 242 

no  separate  earnings  in  general 242 

but  legislation  recognizes  them 24- 

husband  may  confer  the  right 243 

cases  of  abandonment 244 

o/muior  £A//dre«  belong  to  parent 344 

the  rule  limited  in  practice 34o 

parent  may  sue  for  earnings 34o 

may  relincjuish  right 346 

money  unlawfully  earned  by  child 348 

prize-money,  pay,  seaman's  wages,  &c 348 

of  ward  do  not  belong  to  guardian 454 


702  INDEX. 

EARNINGS  —  Continued. 

of  infant;  his  contract  of  service  construed 561 

whether  money  is  due  when  infant  avoids  it 561 

of  servant 620,  633 

(See  Emancipation ;  Pin-money;  Tkade.) 
EDUCATION, 

parents  should'educate  children 316 

questions  under  father's  will :  religious  education 316 

jurisdiction  and  practice  of  chancery 317 

parent''s  riglit  where  child  is  excluded  from  school       ....  355 

as  to  guardian  and  ward 460 

EMANCIPATION, 

of  children  by  the  parent 358,  367 

how  emancipation  is  effected 368 

by  indenture  and  parol 368 

emancipation  niu.st  be  proved 369 

emancipation  by  abandonment  or  marriage 370 

effect  of  emancipation 371 

earnings  of  child  then  belong  to  him 371 

emancipation  on  arriving  at  full  age 372 

full-grown  children  may  remain  at  home 372 

their  lights  and  duties  in  such  case 372 

legislative  emancipation 620 

ENLISTMENT, 

infant's  contract 560 

ENTICEMENT, 

of  wife 57 

of  child 354 

of  servant 631 

EVIDENCE, 

husband  and  wife  disqualified  as  witnesses 63 

exceptions  to  rule 65 

capacity  of  infants  to  testify 526 

servants  may  be  witnesses 627 

EXECU  TRIX, 

liability  of  husband  for  wrongful  acts 105 

husband's  management  of  trust  property 135 

cannot  bind  herself  by  contract 186 

husband's  power  over  chattels  real 138 

may  make  will 253 

(See  Wills.) 
EXONERATION, 

wife's  right 178 

(See  Real  Estate.) 


F. 

FRAUDS.     (See  Torts.) 


INDEX. 


G. 


703 


GIFTS, 

wife's  gift  cmisa  mortis ^^^ 

between  husband  and  wife 276-288 

.(See  Postnuptial  Settlements  ;  Guardian  ;  Infants.) 
GOVERNMENT, 

not  liable  for  torts  of  servants "oO 

GUARDIAN, 

effect  of  female  guardian's  marriage 136 

rights  and  duties  of  socage  guardian 392,  436 

rights  and  duties  of  testamentary  guardian 394,436 

nature  of  guardian's  estate  ;  whether  a  trustee  ....       435,  437 

authority  over  person  and  estate '^^^ 

chaticerv  and  probate  control  of  ward's  property  contrasted   440,  476 

joint  guardians        *^" 

guardian  holding  other  trusts 441,  49/ 

cannot  blend  distinct  trusts ■**" 

where  legacy  is  left  to  an  infant 44l 

administrator  durante  minore  cetate ^^'^ 

rights  as  to  warcVs  person ^'*" 

guardian's  right  of  custody ^'^^ 

rule  as  between  guardian  and  parent *oO 

whether  guardian  may  change  ward's  domicile 45- 

or  carry  ward  beyond  the  jurisdiction 453 

custoily  of  insane  persons  and  spendthrifts 454 

guardian  cannot  claim  ward's  personal  services 454 

other  rights  relating  to  ward's  person 454 

duties  as  to  icajd's  jyersan ^^'^ 

general  rule  of  protection,  education,  and  maintenance    .      .      .     455 

guardian  not  bound  to  expend  his  own  fortunes 455 

when  he  incin-s  personal  liability 456 

appropriation  of  ward's  property  for  his  support 457 

when  income  may  be  exceeded 458 

maintenance  in  chancery 440,  459 

guardian's  right  to  control  ward's  education 460 

rights  and  duties  as  to  icard's  estate 461 

general  rules  of  management 461 

right  to  sue  and  arbitrate 462 

guardian  cannot  bind  ward  by  contract 464 

but  may  be  reimbursed  from  ward's  estate 465 

title  to  promissory  notes 465 

appli<ation  of  statute  of  frauds  to  guardian's  contract       .     .     .     466 

conversions  of  property  not  favored 466 

but  practical  conversion  sometimes  takes  place 467 

sales  and  exchanges 466 

unauthorized  acts  are  at  guardian's  peril 468 


70i  INDEX. 

GUARDIAN  —  Continued. 

he  must  not  derive  undue  advantage 469 

limit  of  guardian's  liability 470 

must  lease,  &c.,  ward's  real  estate 471 

authority  over  real  estate  limited 472 

duties  as  to  personal  estate 473 

must  secure  property,  collect  debts,  &c ,     ..     .     474 

investment  of  ward's  funds 475 

when  guardian  is  chargeable  with  interest 477 

speculations  with  ward's  money 478 

sales  of  ward's  personal  estate 46G,  480 

sales  of  ward's  real  estate 446,466,480-487 

criminal  responsibility 505 

(See  Accounts  ;  Bond;  Inventory;  Ward.     And  see  Guardianship.) 

GUARDIAN  AD  LITEM, 

in  suits  against  infants 405,  596 

GUARDIANSHIP, 

in  general 7,  389 

ancient  species  of  guardianship 390 

by  nature  and  nurture 391,  399 

in  socage 392,  399 

testamentary  guardianship 393,  399 

chancery  guardianship 395,  400 

by  infant's  election 398 

probate  guardianship 399 

at  civil  law 402 

of  insane  persons 403 

of  spendthrifts 404 

of  married  women 404 

for  special  purposes 405 

guardians  od  litem 405,  596 

quasi  relation  established 443,  495,  516 

conflict  of  laws 443 

constitutional  questions 446 

(See  Appointment  ;  Termination  ;  Guardian  ;  Ward.) 


H. 

HOMESTEAD, 

rights  in  America 186 

HUSBAND, 

the  head  of  the  family 51 

bound  to  live  with  wife 53 

matrimonial  domicile 54 

contracts  in  restraint  of  marital  rights 54 

cannot  sue  wife 57 

suit  against  others  for  enticement 57 

ri<j;ht  of  chastisement  and  correction 59 


INDEX.  705 

HUSBAND  —  Continued. 

right  of  gentle  restraint 60 

liable  for  assault  and  battery 61 

rights  and  liabilities  for  his  wife's  torts 102 

(See  Touts.) 

rights  over  his  wife's  personal  property 61,111 

interest  in  wife's  chattels  real 137 

(.S'ee  Chattels  Real.) 

interest  in  wife's  real  estate 142 

(-See  Real  Estate.) 

rights  and  disabilities  upon  wife's  death 158 

(See  Death.) 

control  of  wife's  will 251,  259 

(See  Wills.    See  also  Actions  ;  Antenuptial  Settlements  ;  Children  ; 
Contracts  ;  Custody  ;  Wife  ;  Separation  ;  Separate  Estate  ;  Post- 
nuptial Settlements.) 
HUSBAND  AND  WIFE, 

law  in  a  transition  state 5    10 

common-law  and  civil-law  schemes  contrasted 10 

community  system 14 

married  women's  legislation  in  America 16,  209 

(See  Husband  ;  Wife.) 

I. 

ILLEGITIMATE  CHILDREN, 

rights  and  disabilities  in  general 379 

disability  of  inheritance 379 

common-law  and  civil-law  doctrines 380 

inheritance  permitted  in  the  United  States 380 

preference  as  between  mother  and  father 381 

putative  flither's  right  of  custody 382 

statutes  affecting  the  subject 383 

whether  putative  father  must  maintain 384 

seduction  may  support  promise  to  mother 385 

general  rights  of  action  as  to  such  children 386 

bequests  to  illegitimate  children 386 

extent  of  doctrine  in  England  and  America 387 

guardianship  of  illegitimate  children 388 

IMPROVEMENTS, 

husband's  claim  for,  on  wife's  lands 165  234 

as  to  infants 586 

INFANCY, 

considered  as  impediment  to  marriage 32 

(See  Lnfants.) 

INFANTS, 

husband  bound  as  adult 60,  74,  87 

election  of  guardian 398  409 

45 


706  INDEX. 

INFANTS  —  Continued. 

guardian  sometimes  holds  infant's  legacy 442 

when  majorit}'  is  reached 518,  520 

general  incapacity  to  contract 520 

right  of  infant  to  hold  office 521 

responsibility  for  crimes 523 

wills  of  infants 524 

testimony  of  infants 526 

their  marriage  settlements 528 

acts  void  and  voidable 532 

general  doctrine  of  protection 532 

test  of  void  and  voidable  contracts 532 

privilege  of  avoiding  not  extended  to  others 534 

modern  tendency  to  regard  all  acts  as  voidable  only   ....  536 

acts  and  contracts  excepted  as  void 636 

voidable  purchase 539 

deeds,  leases,  exchanges,  &c 540 

letters  of  attorney,  cognovits,  &c 540 

miscellaneous  voidable  acts 542 

infant  shareholder's  liability 543 

gifts  of  infant 643 

inflmt's  trading  contracts 544 

summary  of  doctrine  as  to  void  and  voidable 545 

usual  period  of  ratification,  that  of  majority 546 

disaffirmance  of  contracts  during  minoi-ity 546 

acts  binding  upon  the  infant 547 

general  principle  of  binding  acts 647 

contracts  for  necessaries 547 

{See  Necessaries.) 

contracts  relative  to  marriage  state 568 

infant's  acts  which  do  not  touch  his  interest 659 

infant  shareholders  and  defendants  in  equity 559 

acts  which  the  law  would  compel 659 

infant's  contract  of  enlistment 560 

indentures  of  apprenticeship 560 

contracts  of  service  construed 561 

whether  compensation  is  due  when  infant  avoids 561 

injuries  and  frauds  of  infants 563-673 

{See  Touts.) 

ratification  of  contracts 575 

{See  Ratification.) 

actions  by  and  against 592-598 

chancery  practice  relative  to  infants 598 

(See  Actions.     See  also  Childhen;  Domicile.) 

INJURIES.     {See  Touts.) 

INSANE   PERSONS, 

reduction  by  insane  husband 122 

(See  GuAUDiAxsHip ;  Necessaries.) 


INDEX.  '  707 

INSURANCE, 

of  husband's  life  for  wife's  benefit 289 

of  parent  on  child's  life 349 

INVENTORY, 

of  ward's  estate  to  be  filed  by  guardian 494 


J. 
JOINT-TENANT, 

where  wife  is,  husband's  rights 167 

JOINTURES 185 


L. 

LEGITIMACY, 

definition 303 

presumption  of  legitimacy 304 

legitimation  by  subsequent  marriage 308 

status  of  children  born  after  divorce 311 

doctrine  of  putative  marriages 311 

legitimation  by  sovereign  or  legislative  acts 312 

conflict  of  laws  as  to  legitiraacv 313 

LETTERS, 

of  husband,  wife's  title 176 

of  wife  under  separation  deed 294 

LIFE-ESTATE, 

of  wife,  affected  by  coverture 156 


M. 

MAINTENANCE, 

nature  and  definition 318 

how  far  the  parental  duty  extends  at  law 319 

statute  43  Eliz 319 

maintenance  of  step-children 321,  378 

maintenance  ordered  in  chancery 322 

circumstances  considered  by  the  court 323 

rule  applied  to  mother 325 

restriction  applied  to  maintenance 327 

rule  applied  to  guardian 440,  455-460 

(See  Necessaries.) 

MAJORITY.     (See  Infants.) 

MARRIA(iE, 

definition  of  the  word 22 

it  differs  from  ordinary  contracts 22 

void  and  voidable  marriages 24 


708  '  INDEX. 

MARRIAGE  —  Coi^tinued. 

the  essentials  of  a  valid  marriage 25 

consanguinity  and  affinity 26 

social  condition  as  a  disqualification 28 

mental  capacity  as  an  essential 29 

physical  capacity  as  an  essential 81 

infancy  as  an  impediment 32 

inipudiinent  of  prior  marriage 33 

impediments  following  divorce 34 

when  void  for  fraud,  force,  or  error 35 

its  proper  celebration 39 

what  expression  of  consent  is  requisite 39 

the  law  of  informal  celebration 40 

formal  celebration  under  statutes 43 

consent  of  parents  and  guardians 46 

how  far  legalized  by  statute 47 

conflict  of  laws  considered 47 

of  child  against  parent's  consent 355 

emancipation  by  marriage 370 

eflect  upon  guardianship  of  infint 425 

of  female  guardian  extinguishes  authority 433 

of  ward  in  chancery 516 

(See  Legitimacy.) 

MARRIAGE  ARTICLES 267 

(See  Antenuptial  Settlements.) 

MARRIAGE  SETTLEMENTS. 

(See  Settlements.) 

MARRIED  WOMEN'S  ACTS, 

their  general  characteristics 16 

dangers  to  be  avoided 17 

history  of  legislation 208 

earlier  acts 209 

sweeping  acts  in  New  York  and  Pennsylvania 210 

summary  of  the  acts  in  the  United  States 2\2,n. 

general  policy  indicated 213 

restrained  by  judicial  construction 214 

original  jurisdiction  in  equity  not  ousted 214 

changes  made  in  common-law  obligations  and  rights    ....  215 

constitutional  questions 216 

wife's  dominion  over  separate  estate 229 

new  doctrine  in  New  York  as  to  contracting  debts      ....  229 
American  rules  as  to  enforcing  wife's  engagement  against  her 

separate  estate 230 

protection  of  separate  estate  against  husband's  creditors ;  how 

far  hu>band  controls 231 

conveyances  of  separate  lands 235 

husband's  rights  as  survivor 236 

rule  of  certain  States 236 


INDEX.  .  709 

MARRIED    WOMEN'S   ACTS  —  Continued. 

wife's  purchase  on  credit 237 

right  of  action,  and  liabilities  to  suit 238 

confused  state  of  law  at  present  time 238 

as  to  separate  earnings 243 

wife's  power  to  trade 247-249 

relative  to  wills 256-258 

ratification  of  infant  wife's  conveyance     . 589 

(See  Sepauate  Estate.) 

MASTER, 

obligations  as  to  discipline G16 

duty  to  furnish  necessaries G17 

whether  he  must  find  work G17 

duty  to  receive  into  sei'vlce  the  person  engaged 618 

must  indemnify  servant 618 

remedies  against  him  for  breach  of  contract 618 

rules  for  payment  of  wages 620 

apportionment  and  quantum  meruit 621 

representations  as  to  servant's  character  and  guaranty      .     .     .  625 

General  rights  of  Master. 

right  of  action  for  injuries  to  servant 630 

seduction,  enticing  away,  and  harboring 631 

right  to  servant's  acquisitions 633 

General  liabilities  of  Master. 

bound  by  servant's  acts  as  agent 633 

application  of  rule  to  contracts 634 

agents,  general  and  special 635 

liability  for  servant's  torts 636 

not  for  acts  wapton  and  beyond  scope  of  employment ....  638 

rule  as  to  real  estate 641 

not  liable  to  servant  for  tort  of  fellow-servant 642 

but  liable  for  his  own  negligence 643 

who  are  servants  and  fellow-servants          644 

not  criminally  responsible  for  servant's  misconduct      ....  646 
(See  Servant.) 

MASTER  AND  SERVANT, 

nature  and  origin  of  the  relation 7,  599 

limitations  of  the  subject 600,  647 

rule  of  classification 601 

(>See  Apprentice  ;  Master;  Servant;  Workmen.) 

MORTGAGE, 

of  wife's  lands  by  herself 154 

she  is  surety 155,  176 

(See  Real  P]st.vte.) 

of  wife's  separate  lands  by  husband 234 

by  guardian  of  ward's  lands 473 

of  infants  cannot  be  avoided  without  the  sale  .     .     .      560,  584 


710  INDEX. 


N. 

NECESSARIES, 

of  the  wife 77 

{See  Contracts.) 

of  children 327,  456,  647 

•whether  child  may  bind  parent 327 

whether  child  must  supply  parent 366 

■whether  guardian  must  supply  ward 4.56 

leading  principles  as  to  infants 547 

what  are  classed  as  necessaries  for  an  infant 548 

question  one  of  mixed  law  and  fact 550,  555 

education,  house-repairs,  legal  expenses 550 

trading  contracts  not  included 552 

limitation  of  liability  for  necessaries 553 

money  advanced  for  necessaries       . 555 

infant's  bond  and  note  for  necessaries 556 

o/' a  seryan/,  and  master''s  liability 617 

NEGLIGENCE.     (See  Torts.) 

P. 

PARAPHERNALIA, 

nature  and  incidents 171-175 

reimbursement  from  real  estate :     .     .     .     .  175 

PARENT, 

consent  to  child's  marriage 46 

Duties  in  general. 

duty  of  protection • 315 

limit  to  parent's  right  of  correction  and  discipline 333 

indictment  for  cruelty,  exposure,  or  neglect 333 

duty  of  education 316 

(5ee  Education.) 

duty  of  maintenance 318 

(See  Maintenance.) 

duty  to  provide  profession  or  trade 331 

Rights  in  general. 

general  authority  of  the  parent 332 

right  of  custody 333 

{See  Custody.) 

right  to  child's  labor  and  services 344 

{See  Earnings.) 

right  to  clothing  and  other  effects 349 

but  not  to  child's  general  property 349 

how  far  legislature  may  interfere  with  parents'  rights  and  duties  350 

rights  as  to  child's  injuries 351 

(See  Torts.) 


INDEX. 


711 


PARENT—  Continued. 

liabilities  as  to  child's  torts 361 

(See  Torts.) 

transactions  between  parent  and  child 3/ 4 

rule  of  advancements  ;  expectant  estates 376 

legacies  to  children  ;  descent  and  distribution 378 

PARENT  AND   CHILD, 

nature  of  the  relation 21,  303 

(.See  Parent;  Children;  Illegitimate  Children;  Legitimacy.) 
PERSONAL   PROPERTY, 

of  wife  goes  to  her  husband  at  common-law HI 

c/iose.s  i« /)0.ssess«o?«  go  at  once  and  absolutely    .     .     .     .       111,11- 

so  chattels  bequeathed  to  wife  without  restriction 113 

so  earnings  of  the  wife ^1* 

(See  Earnings.) 

rule  as  to  clioses  in  action ■'■1* 

(See  Choses  in  Action.) 

wife's  trust  property  does  not  vest 135 

(See  Chattels  Real;  Separate  Estate.) 
PIN-MONEY, 

its  nature  and  incidents -^'^ 

rule  as  to  arrears -^^ 

house-keeping  allowances -"^- 

PORTIONS    (see  Antenuptial  Settlements.) 273 

POSTNUPTIAL  SETTLEMENTS, 

are  usually  without  consideration -'6 

viewed  as  regards  creditors -' ' 

statute  of  13  Eliz.  aflfects  them  in  England 277 

bankrupt  acts -'^ 

statute  of  13  Eliz.  as  applied  in  this  country 279 

statute  of  27  Eliz.  also  affects  tlie  settlement 280 

creditors  and  purchasers  thus  protected 280 

English  rule  a  strict  one 280 

not  so  applied  in  this  country 281 

valuable  consideration  sometimes  interposed       ....      282  &  n. 
settlements  and  gifts  viewed  as  between  husband  and  wife     .     .     283 

if  complete,  they  are  effectual  in  equity 284 

but  gift  should  he  clear  and  irrevocable 285 

transfer  sustained  by  valuable  consideration 285 

wife  may  make  gift  to  husband 286 

trustees  desirable,  but  not  essential 286 

incidents  of  gifts  and  settlements 286 

effect  of  change  of  domicile -"' 

lands  how  transferred ^"' 

POWER, 

of  appointment  in  married  women -23 

wife  may  execute  by  will 261 


712  INDEX. 

PROCHEIN  AMI, 

in  suits  by  infants 592 


R. 

RATIFICATION, 

of  voidable  contracts  by  infants 575 

Lord  Tenterden's  act  construed 575 

other  statutes 575 

American  doctrine  of  ratification 577 

conflicting  decisions 579 

whether  acknowledgment  of  debt  suffices 580 

summary  of  American  doctrine 582 

express  repudiation  and  disaffirmance 582 

ratification  as  to  real  estate 584 

whether  entry  upon  the  land  is  necessary 586 

rule  as  to  an  infant's  purchases 588 

miscellaneous  points  in  ratification 589 

infant  must  place  other  party  in  statu  quo 591 

REAL  ESTATE, 

of  wife,  usufruct  in  husband 142 

wife's  ownership  remains 143 

actions  for  waste 143,  149 

husband  has  arrears  of  rent  and  emblements 144 

life-interest  attachable 144 

alienage,  attainder,  and  felony 145 

husband's  power  to  bind  and  alienate 146 

effect  of  his  lease  and  mortgage 147,  149 

husband  may  dissent  from  purchase,  &c 150 

right  to  proceeds  after  conversion 150 

general  incidents  of  husband's  title 151 

wife's  agreement  to  convey 152 

wife's  power  to  alienate  and  encumber 152 

may  join  in  conveyance 152 

wife's  power  to  mortgage 154 

wife  not  bound  by  covenants 155 

wife's  life-estate 156 

as  to  wife's  lands  held  in  joint  tenancy 157 

husband's  claim  for  improvements 165 

rights  of  wife,  mortgagee  for  her  husband 155,176 

her  e(juity  of  redemption 176-178 

her  riglit  of  exoneration 178 

rights  affected  by  legislation        215 

rule  as  to  the  wife's  separate  lands 234 

not  in  general  devisable 258 

{See  Wills.) 


INDEX. 


713 


REAL  ESTATE  —  Continued. 

conveyancL'S  between  husband  and  wife     .     .     . 

effect  of  conveyance  to  husband  and  wife  .     .     . 
{See  Infants;  Mastkk;  Ward.) 
REDUCTION, 

of  wife's  f/ioses  t'(  «c<io?),  how  effected   ... 

mere  intention  or  actual  possession  insufficient 

as  to  receipt  of  the  cJiose,  or  of  interest 

of  wife's  stock,  bills  and  notes  .     .     . 

as  to  delivery,  and  agreement  to  sell 

as  to  pledge  and  mortgage  of  chose    . 

where  property  is  converted      .     .     • 

legacies  and  distributive  shares      .     . 

medium  of  agent 

husband's  right  is  one  of  election  .     . 

where  assignment  is  voluntary 

where  a.-signment  is  for  value    .     .     . 

equily  rule  a  capricious  one     .... 

releases  from  husband 

Ijy  suit  and  arbitration 

where  luisband  is  lunatic 

summary  of  doctrine 

wife  has  et^uity  to  settlement 

(,S'ee  WiFE'tj  Equity.) 


\:>l 


287 
288 


116 
116 
117 
117 
119 
119 
120 
121 
122 
122 
123 
124 
124 
126 
-128 
122 
128 
128 


S. 

SAVINGS, 

of  wife  from  house-keeping  allowance 242 

SEDUCTION, 

of  wife  .     .     .     .    ■ 1*^9 

of  child 356 

of  servant ^^^ 

{See  Illegitimate  Childken.) 

SEPARATE   ESTATE, 

of  married  women,  its  nature  and  creation 187 


Enr/lish  Doctrine. 

its  origin  in  chancery 

no  trustee  need  be  named 

separate  estate  not  presumed 

words  sufficient  to  create  it 

fund  and  i)roduce  of  a  fund 

ambulatory  operation;  it  exists  only  in  marriage  state 

wife's  right  to  renounce 

marital  obligations  of  liusb;md  continue     .... 

rights  of  purchasers  without  notice 

restraint  upon  anticipation 

courts  of  law  sometimes  uphold  separate  estate  .     . 


188 
1S8 
IS'J 
]s;» 
\\)3 
194 
195 
i;;6 

197 
197 
199 


714  INDEX. 

SEPARATE   ESTATE  —  Continued. 

American  Doctrine. 

how  far  sustained  by  our  courts  of  equity 200 

rule  of  trustee  and  presumptions 202 

what  words  create  it 202 

created  by  parol  in  some  States 203 

whether  separate  property  can  be  acquired  by  contract    .     .     .  204 

liability  for  wife's  debts 205 

husband's  obligations  continue 206 

effect  of  husband's  or  wife's  death 207 

savings  of  interest  or  income 207 

husband's  suits  with  reference  to  separate  estate 208 

comity  of  nations  applied 208 

later  equity  rules 218 

recent  legislation 208 

(See  Married  Women's  Acts.) 

Wife''s  Dominion. 

English  ru]e  is  to  give  TuW  Jus  disjjonendi 219 

technical  difficulties  in  real  estate 220 

wife  may  bind  separate  estate  by  contract 220 

but  Avife's  debts  are  debts  sub  modo 221 

wife's  power  of  appointment 223 

rights  barred  by  breach  of  trust 224 

general  rule  as  to  wife's  power  to  bind 224 

she  may  encumber  and  contract 225 

she  may  bestow  upon  her  husband,  unless  specially  restrained  .  226 

arrears  of  income 227 

American  rule  favors  dominion 227 

permits  wife  to  bestow  upon  husband 228 

and  to  bind  estate  by  contracts •.  228 

exceptions  to  doctrine 229 

affected  by  legislation 229 

{See  Married  Women's  Acts.) 

wife  may  bestow  by  will 253 

(/See  Earnings;  Pin-Money;  Trade;  Wills.) 
SEPARATION, 

husband's  liability  for  wife's  necessaries 89 

where  separation  is  voluntary 94 

as  affecting  wife's  torts 104,  109 

husband's  right  to  wife's  property    .     .     .     .       Ill,  1*35 

husband's  life-interest 144 

right  of  administration 159 

general  doctrine  of  separation 290 

origin  of  separation  deeds 292 

enforceable  as  covenants 292 

rule  not  favored  in  this  country 294 

wife's  rights  when  abandoned  by  husband 295 

maintenance  of  children 322 


INDEX.  715 

SERVANT, 

relation  arises  upon  the  hiring 60() 

the  contract  of  hiring 607 

distinction  between  menial  and  other  servants 608 

contract  affected  by  statute  of  frauds 609 

restraint  of  trade 609 

contracts  for  life 610 

service  and  agency 611 

how  contract  is  terminated 612 

servant  does  not  occupy  premises  as  tenant 615 

Liabilities  as  to  Master. 

bound  to  perform  engagement 625 

accountability  to  master 626 

battery  in  defence  of  master 627 

he  may  be  a  witness 627 

Liabilities  as  to  Third  Persons. 

not  personally  liable  on  his  contract 628 

otherwise  in  case  of  fraud  and  corruption 629 

liability  for  his  torts      .     .     .  • 629 

misfeasance  and  nonfeasance 629 

government  and  its  servants 630 

(See  Master.) 

SETTLEMENTS, 

of  infants 528,  568 

(See  Antenuptial  and  Postnuptial  Settlements.) 

SPENDTHRIFTS.     (See  Guardianship.) 

STEP-CHILDREN, 

rights  and  liabilities 321,  378 


T. 

TENANT  IN   COMMON, 

where  wife  is  tenant  in  personalty 112 

TERMINATION, 

of  giiardiuriship  in  general 423 

its  natural  expiration  as  to  minors 423 

as  to  insane  persons  and  spendthrifts 424 

death  of  the  ward 424 

marria<:e  of  the  ward 425 

death  of  the  guardian 426 

resignation  of  the  guardian 426 

removal  and  supersedure  of  guardian 429 

marriage  of  female  guardian 433 

other  instances  where  a  new  guardian  may  be  appointed       .     .  433 

of  sa-vanVs  contract 612 


716  INDEX. 

TORTS, 

of  wife  ajjeded  by  coverture 101 

husband  stands  in  the  wife's  stead 102 

but  not  unless  marriage  in  fact  appears 102 

when  presumption  of  coercion  arises 103 

husband's  liability  limited 103 

form  of  suit  where  wife  is  offender 104 

rule  where  wife's  contract  is  basis  of  the  fraud 104 

fraudulent  representations  as  agent 105 

devaniavit  of  an  executrix 105 

liability  for  wife's  breach  of  injunction 106 

hu^band  and  wife  sue  together  for  injuries  to  the  wife      .     .     .  106 

form  of  suit  and  rule  of  compensation 107 

husband's  special  suit  per  quod 108 

case  of  instantaneous  death 110 

where  both  husband  and  wife  are  injured 110 

rights  affected  by  married  women's  acts 215 

oj"  children  considered 351 

parent  may  sue  for  loss  of  child's  services 351 

limitations  of  the  rule 351,  573 

statutes  affecting  the  right  of  action 352 

in(;idents  of  such  suits  .     .     .     '. 353 

assault  and  battery  of  child 353 

enticement  and  abduction 354 

cases  where  right  of  action  is  not  sustained 355 

seduction  of  child 356 

amount  of  damages  recoverable 359 

liabilitv  of  parent  for  torts  of  his  infant  child 361 

child  himself  is  answerable 362 

but  not  necessarily  the  parent 362 

committed  b)/  in/ants 563 

rule  of  infant's  liability 563 

where  parent  expressly  commands 564 

not  responsible  for  torts  arising  from  contracts 564 

e(piitable  principle  of  later  cases 565 

embezzlement  and  deceit 567 

(;hancery,  civil  law,  and  statutory  rules 569 

sufftred  by  infants 570 

general  right  to  sue 570 

except  where  a  trespasser 571 

negligence  of  a  child's  parent 571 

joint  wrong-doers 573 

arbitration  and  compromise  of  torts 573 

miscellaneous  points 573 

torts  and  frauds  of  servant 629 

of  government  agents 630 

of  master  for  servant's  torts 636-644 

{See  also  Gl'aruian.siiii>;   Master  and  Sekvant.) 


INDEX.  717 

TRADE, 

loife's  capacity  recognized  in  England 244 

but  under  restrictions -^^ 

doctrine  asserted  in  this  country  lately 245 

conclusion  from  American  equity  cases 247 

right  enlarged  by  married  women's  acts 247 

doctrine  of  jNIassachusetts  and  New  York 248 

rule  in  other  States -^^ 

wife's  trade  in  partnership  with  husband 249 

civil-law  doctrine 250 

infanCs  right  to  trade '^^^ 

his  trading  contracts  not  necessaries 552 


w. 

WAGES.     (5ee  Earnings.) 
AVARD, 

judicial  control  of  ward's  property 440,4/6 

property  followed  whenever  wrongfully  disposed  of    ...     .  470 

as  to  u-ard's  real  estate "166,  471 

constitutional  questions  concerning  sales 446 

extent  of  guardian's  control 471,  472 

sales  not  allowed  in  chancery 480 

purchases  on  ward's  behalf 481 

legislative  authority  may  intervene 482 

American  statutes  permit  sales 482 

disposition  of  proceeds 48b 

essentials  of  purchaser's  title 484 

immaterial   irregularities ;    those    which   make    sale    voidable ; 

those  Avhich  make  sale  void 484 

sales  of  land  by  non-residents 486 

New  York  chancery  rule  ;  American  efjuity  rule 487 

general  rightu  of  the  ward 504 

remedies  against  his  guardian 505 

action  of  account  after  guardianship 606 

right  to  recover  embezzled  property 507 

ri'dit  to  have  fraudulent  transactions  set  aside 507 

mav  repudiate  or  confirm  unauthorized  acts  at  his  election  .     .  509 

election  as  to  guardian's  bargains  with  ward's  funds    ....  510 

transactions  between  guardian  and  ward 512 

gilts  to  guardian  treated  with  suspicion 512 

such  questions  determined  on  settlement  of  accounts  ....  514 

ward's  right  to  reopen  accounts 514 

transactions  after  guardianship  is  ended 515 

marriage  of  ward  in  chancery 516 

{See  GuAKDiAN.) 


718  INDEX. 

WIFE, 

bound  to  live  with  Imsband 54 

how  far  bound  to  follow  him  .     .  54,  56 

rights  and  disabilities  at  common  law 51,  61 

her  debts  dum  sola  .     .     .     . 62,  69 

her  frauds  and  injuries 63,  101 

her  right  to  sue  and  be  sued  asfeme  sole 63 

{See  Contracts  ;  Debts.) 

her  debts  and  contracts  during  marriage 69 

liable  for  her  own  crimes 101 

presumption  of  coercion  in  some  cases 102 

rights  and  liabilities  as  to  torts 102 

{See  Torts.) 

disability  as  to  her  personal  property Ill 

{See  Personal  Propkrty.) 

rights  and  disabilities  upon  husband's  death 168 

{See  Death.) 

dower  and  homestead  riglits 182 

right  to  make  will 251 

{See  Wills.) 

right  to  act  as  guardian 136,  418 

{See  Divorce  ;   Husband  ;  Separate  Estate  ;  Settlements.) 

WIFE^S  EQUITY, 

general  doctrine 128,  213 

rule  applied  liberally  to  her  c/iose.s  ^■^^  rtdi'o?i 128 

how  far  chancery  interferes 129 

rule  applies  to  husband's  representatives 130 

distinction  between  absolute  and  life  interest 130 

equity  does  not  extend  to  reversionary  fund 131 

preserved  usually  from  capital  of  fund 132 

proportion  allowed  the  wife 132 

right  lost  by  death  and  misconduct 133 

husband  may  become  a  purchaser 133 

wife  precluded  by  her  waiver  or  her  fraud 134 

circumstances  in  case  of  separation 135 

WILLS, 

wife's  general  incapacity 251 

married  women  incapable  at  common  law 251 

exceptions  by  hus'  and's  consent 251 

exception  as  to  trust  property 253 

wife  may  dispose  of  separate  estate 253 

right  where  husband  is  dead  at  the  law 255 

as  to  property  acquired  after  husband's  death 255 

recent  English  statutes  on  the  subject 255 

change  eifected  by  American  legislation   ........  256 

statutes  on  the  subject  compared 256  &  n.,  258 

civil-law  capacity 257 

confirmation  and  republication 259 


INDEX.  719 

WILLS  —  Continued. 

devises  from  wife  to  husband 259 

how  far  marital  influence  may  invalidate 259 

wife's  donatio  cansa  mortis 260 

mutual  wills  of  husband  and  wife 260 

wife  may  dispose  under  a  power 261 

will  of  person  under  guardianship 505 

incapacity  of  infants 442,  624: 

WITNESSES.     (See  Evidence.) 

WORKMEN, 

English  legislation 602 

councils  or  courts  of  conciliation 603 

American  legislation "0+ 

trade  associations "04 


Cambridge:  Press  of  John  Wilson  and  Son. 


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